Government surveillance represents one of the more challenging technological issues for the Republican field to address because it pits one set of crucial conservative values (national security and a robust homeland defense) against another (privacy, personal freedom, and restraint on the federal government’s power).
What would a principled, appealing Republican stance on surveillance look like?
In the previous two episodes of this series, I examined how the field of 2016 GOP candidates can develop and articulate an effective technology policy for the sharing economy, patent reform, and broadband access. This policy must reflect the free-market principles fundamental to the party while also appealing to an industry (really, a generation) of technophiles — a shrewd, savvy sector of voters who contribute money, support, and energy out of proportion to their numbers.
Government surveillance represents one of the more challenging technological issues for the Republican field to address because it pits one set of crucial conservative values (national security and a robust homeland defense) against another (privacy, personal freedom, and restraint on the federal government’s power). Unsurprisingly, the various 2016 hopefuls have adopted widely divergent approaches to this vexing issue, especially the particulars of the National Security Agency’s (NSA) metadata-gathering program.
As technology has blossomed, so, too, has the government’s ability to monitor aspects of our lives that until recently had been private, or at least anonymous. Consider not only the data mining of electronic communications but also CCTV devices observing activity on public streets, traffic-light cameras and drones recording automobile movements via license plate numbers, and heat-detecting gadgets locating people and animals.
At the same time, these technologies have been developed and deployed in response to the increasingly sophisticated capabilities of the bad guys, be they terrorists planning an attack on the homeland, drug dealers smuggling contraband, or digital money launderers abetting all of the above. In this ever-escalating virtual cat-and-mouse game, the government cat feels eternally compelled (to mangle the metaphor) to build a better mousetrap.
Of course, the overwhelming majority of US citizens are law-abiding folks with innocuous communications that the NSA will never find remotely interesting. This “nothing to hide” argument has its merits, as even Google’s Eric Schmidt recognized back in 2009, when he told CNBC, “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.” (Schmidt, of course, changed his tune — or at least his rhetoric — once the NSA surveillance program was revealed a few years later.)
But constitutional protections transcend mere pragmatism; even when — or perhaps especially when — our private behavior is innocuous, we deserve privacy from government snooping. To paraphrase the old adage, a government powerful enough to spy on us for our benefit is powerful enough to spy on us for its benefit, a prospect that would have made the Founding Fathers shudder.
And sure enough, this treacherous issue provides perhaps the starkest contrast among GOP candidates of any matter of technology policy. While Sen. Rand Paul (R-KY) sees the Patriot Act as an egregious violation of American freedoms and seeks to gut it altogether, Sen. Marco Rubio (R-FL) would leave it in place as a bulwark against the perennial menace of terrorism.
Paul has vociferously urged the end of NSA surveillance, going so far as to filibuster (twice!) legislation that would have sanctioned it. And he has meticulously and skillfully sought to leverage his positions into support from the tech community.
“The NSA doesn’t need to be recording all of our phone calls,” Paul thundered during an appearance at a San Francisco startup in May. “There’s not one other candidate . . . willing to say, ‘On Day One, I’d stop it all. I’d end all bulk collection of records.’”
But Paul’s extreme opposition to almost all forms of government surveillance — he would repeal the Patriot Act in its entirety, among other things — unduly downplays the all-too-real terror risks plaguing the United States. Moreover, his unbridled resistance to technological advances in crime fighting and homeland defense runs the risk of turning off the very technophiles he would hope to appeal to. Finally, the darkly negative tone in which Paul presents his criticisms clashes with the upbeat, sunny notes that successful candidates sound, as Charles Lane argues persuasively.
Of course, even if Paul’s zealous antisurveillance approach overreaches, he deserves immense credit for courting tech voters. “Some people want to know, what the hell is a Republican doing in San Francisco?” Paul queried during his May San Francisco talk. “I would say, it’s about time.” Amen to that.
On the exact opposite end of the spectrum, Rubio has staked out an unapologetically aggressive prosurveillance position.
In a January op-ed, Rubio argued that the US “cannot afford to ignore another lesson of 9/11 and curtail intelligence gathering capabilities that have been legally and painstakingly established following those horrific attacks.” The Florida senator exhorted his congressional colleagues to enact “a permanent extension of the counterterrorism tools our intelligence community relies on to keep the American people safe.” And he went even further, urging “American technology companies to cooperate with authorities so that we can better track terrorist activity and monitor terrorist communications as we face the increasing challenge of homegrown terrorists radicalized by little more than what they see on the Internet.”
While Rubio’s position coheres from a foreign policy standpoint and faithfully reflects the senator’s strongly held views, it may not play in Silicon Valley.
In between lies the rest of the GOP hopefuls. Former Florida Governor Jeb Bush has called Paul’s approach “wrong,” noting that “the metadata program has kept us safe, plain and simple. . . . There’s been no violation of civil liberties.”
Wisconsin Governor Scott Walker told reporters in May that he would like to see a better “balance” of privacy and security concerns, but that he opposed further restrictions on the metadata program because “we need to be able to gain access to information that would help us.”
Other candidates’ responses have been less than clear, as this handy National Journal summary points out.
How, then, to square the circle? How can Republican candidates forge a coherent surveillance policy that balances competing values and attracts support from the tech community? A recent court ruling and academic paper may provide the answer.
In an important decision a few months ago, the Second Circuit Court of Appeals ruled that the Patriot Act did not authorize blanket metadata gathering simply when the data “may become relevant to a possible authorized investigation in the future,” but instead only when its review forms part of an “ongoing ‘systematic examination’ of [a] particular suspect, incident, or group.”
While the court’s ruling may be overturned by the Supreme Court, and while Congress is itself debating fixes to the law, the Second Circuit’s decision both reflects a growing popular desire to rein in the metadata program’s excesses and enunciates, in general terms, a strategy for doing so. To vacuum up details of the private communications of American citizens, the government must explain how that information is currently relevant to an investigation, not merely how it may one day become so.
Harvard Law professor Philip Heymann paints some details in a helpful essay on domestic surveillance, in which he offers a fruitful middle ground. “If the government’s use of big data is to contribute to our safety,” Heymann contends, “the predicate for the legal authorization granted by a warrant should be a showing of a serious need for using techniques of big data analysis to draw conclusions about individuals and private matters from previously collected fields of data.”
Requiring probable cause before implementing a metadata sweep, Heymann rightly acknowledges, would unduly hamper the government’s ability to track terrorists and criminal enterprises. But he proposes several more moderate checks on the government’s power, including (among other things) requiring the feds:
- To obtain a warrant prior to initiating any data-gathering effort;
- To proffer “specific and articulable facts showing reason to believe that any data sought . . . will, if analyzed in specified ways and in connection with other specified data files, be likely to provide significant assistance in an ongoing investigation either of a felony committed under federal or state laws or of a particular, identified foreign threat”;
- To destroy any information not deemed relevant; and
- To destroy all information within three years.
These basic, simple limitations would go a long way toward forestalling abuse of the government’s surveillance powers and, as importantly, toward legitimizing them in the eyes of most Americans.
Requiring a warrant ensures a second branch of government — the judiciary — is involved in the program. Demanding specific facts that demonstrate a relevant connection between existing and prospective data reassures wary citizens that the sweep is not just theoretically useful. And insisting upon the destruction of irrelevant, outdated information shields it from potential abuse.
These measures should not unduly burden the NSA or other government agencies from obtaining the information they reasonably need to keep us safe, nor should they interfere with the executive branch’s prerogative to ensure the national defense and execute foreign policy. Perhaps in addition, Congress could craft a tightly restricted emergency clause that would allow the government to bypass these safeguards when in the digital equivalent of “hot pursuit” of a suspect or group, while still requiring the feds to retroactively justify their actions once the danger has been neutralized.
Thus, if Rubio, Paul, and company saw fit to adopt something along the lines of the Second Circuit’s and Heymann’s proposals with some additional tweaks, they would strike a balance that accords with Republican values and attracts tech votes — a win-win if ever there were one.