William A. McComas: Confronting the surveillance state

Since the UK’s Guardian newspaper and The Washington Post revealed the existence of two National Security Agency surveillance programs, many have expressed surprise and indignation. How could our government in good faith cull the personal data of millions of citizens, they ask? How could it gain access to private communications without our consent? Have our elected leaders allowed the NSA to become an Orwellian behemoth?

A case in point, Maureen Dowd in The New York Times asks: “Now that we are envisioning some guy in a National Security Agency warehouse in Fort Meade, going through billions of cat videos and drunk-dialing records of teenagers, can the Ministries of Love and Truth be far behind?”

Such questioning is understandable, but when such critics point fingers solely at the government, they direct attention away from the complex web of relationships that have permitted the growth of the surveillance state.

The NSA is not an island. The agency is enmeshed in a culture that has been seduced by technology into a more relaxed attitude about privacy in exchange for convenience, pleasures, novelty and/or monetary gain. Over the past decade, Americans have provided corporations with a wealth of personal information — family photographs, shopping habits, ideas, private musings, even real-time locations. Wittingly or not, we have opened ourselves up to be read, searched and analyzed.

When it comes to privacy, many people seem to agree with Google’s Chief Executive Officer Eric Schmidt, who said in a 2009 interview on CNBC: “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.”

Occasionally, there is push-back against privacy intrusions, such as when Google altered its privacy settings in 2012 to better track its users’ behaviors for the benefit of advertisers. But by and large, we have agreed to these invasions. Over and over again, we have clicked the big “ACCEPT” buttons that allow us to use applications and accounts that seem, at the moment, essential.

Given these circumstances, should it be a surprise that a federal agency charged with protecting the country should leverage its technological capabilities and advantages to investigate the behavior of American citizens and foreign nationals under the guise of keeping us safe?

Far more remarkable, at this point, would be a full groundswell of opposition against the government’s intrusions. Apparently, the administration and others on Capitol Hill expect the criticism to subside. Washington appears to have little appetite to change the status quo. Immediately after the leaks, the president, senators and security officials stepped up to defend the NSA’s surveillance programs. These measures, they said, are necessary given the severity of the terrorist threats facing the country. The measures have been effective and essential in the government’s efforts to keep us safe, they said.

In other words, “Trust us.”

Ultimately, we may do just that, regardless of our personal reservations and regardless of whether the government demonstrates the specifics of its claims. According to an Allstate/National Journal Heartland Monitor Poll conducted just before the NSA programs came to light, 85 percent of surveyed adults said they believed their email, phone and Internet communications were likely accessible to the government, businesses and others. The results suggest a widespread suspicion that such spying is a unavoidable fact of American life.

Yet complacency on this issue would be a mistake. Thanks to the disclosure of these programs, our democracy is at a crossroads. We can choose to continue down the path we are on and knowingly embrace a surveillance state that is creating a large data warehouse on its citizens and is, in part, likely unconstitutional, or we can insist on curbing the government’s powers as originally intended by the Patriot Act.

There is a substantive difference between the government’s actions and the behavior of private corporations. For the most part, we voluntarily submit our private information in exchange for certain services from the private sector. We have not known, until now, that our government has been collecting at least the metadata of our phone records. We have not consented, and many of us would not consent to such an intrusion.

Thankfully, there are already efforts underway to rein in the NSA. On June 11, the American Civil Liberties Union sued the government, challenging the constitutionality of the NSA program that indiscriminately gathers phone records. The program is an infringement of First Amendment rights to association and free speech and the right to privacy protected under the Fourth Amendment, according to the complaint. The suit also insists that the NSA has exceeded the authorities granted to the government in the Patriot Act. Similar suits will likely be pursued against the commercial identities that have participated in the program by their customers located in the U.S. and in other jurisdictions like the EU.

Additionally, a bipartisan group of eight senators has revealed legislation that would declassify relevant opinions of the Foreign Intelligence Surveillance Act court. This bill would shed much light on the legal interpretations of the Patriot Act that have allowed the federal government to vacuum up massive quantities of personal phone records and Internet communications, unbeknown to the American public, and would allow citizens to navigate around the broad powers being used by the government.

The bill is a sensible response. Hopefully, it will win support in Congress. Hopefully, too, the ACLU, whose efforts to challenge NSA surveillance have in the past have been rebuffed, will have more success in the courts.

If such attempts to chip away at the remarkable powers assumed by our government do not succeed, it will be up to voters to make their voices heard. Otherwise, business as usual will proceed and surveillance state will likely grow only more powerful.

Perhaps one benefit of our government’s broad sweep on Internet activity is that it hobbles the argument that we have a First Amendment right to speak anonymously online. If we do accept that the government should be able to identify individuals on the Internet, why shouldn’t a mother be able to readily identify predators or cyber-bullies harassing her child? Currently, malicious actors on the Internet are shielded by anonymity; piercing that shield takes money and time in our court system. Perhaps in a surveillance state, the power to identify bad actors would be extended to the public in an efficient and accelerated manner.

William A. McComas, a partner at Shapiro Sher Guinot & Sandler, practices technology and corporate law. He can be reached at [email protected].