by Joseph Jerome, Legal and Policy Fellow, Future of Privacy Forum
Harvard Law Professor Lawrence Lessig, in a piece for The Daily Best, wrote "Trust us' does not compute," in discussion about government national security surveillance programs. After a contentious, technical discussion at the ACS national convention of both the NSA's PRISM program and the cellular metadata orders, a panel of privacy law scholars were forced to concede that "trust us" is today's status quo when it comes to programmatic government surveillance.
It wasn't supposed to be this way. When the Foreign Intelligence Surveillance Act was first passed in 1978, the law was designed to "put the rule of law back into things," explained Professor Peter Swire, co-chair of the Tracking Protection Working Group at the W3C and the first Chief Counselor for Privacy at OMB. The emergence of the Internet, however, changed everything. Intelligence agencies were faced with a legal framework that could not account for situations where "games like World of Warcraft [could be] a global terrorist communication network," he said.
But even as communications technology has been made to serve bad actors, it has also ushered in a Golden Age of surveillance. Modern technology today can easily determine an individual's geolocation, learn about an individual's closest associates, and connect it all together via vast databases. Within the federal government, without strong champions for civil liberties, the availability of these technologies encouraged government bureaucracy to take advantage of them to the full extent possible. Absent outside pressure from either the Congress or the public, "stasis sets in," Swire said.
Yet while service providers collect vast amounts of data about individuals, a combination of business practicalities and Fair Information Practice Principles which stress retention limits and data minimization mean that businesses simply do not keep all of their data for very long. As a result, the government has used Section 215 of the PATRIOT Act to collect and store as much information as possible in the "digital equivalent of the warehouse at the end of Indiana Jones," said Professor Nathan Sales, who largely defended the government's efforts at intelligence gathering.