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The Case Against Expanding Foreign Intelligence Surveillance Act Powers

"I've got nothing to hide, so electronic surveillance doesn't bother me. To the contrary, I'm delighted that the Bush Administration is monitoring calls and electronic traffic on a massive scale, because catching terrorists is far more important that worrying about the government's listening to my phone calls, or reading my emails." So the argument goes. It is a powerful one that has seduced too many people.

Millions of Americans buy this logic, and in accepting it, believe they are doing the right thing for themselves, their family, and their friends, neighbors, community and country. They are sadly wrong. If you accept this argument, you have been badly fooled.

This contention is being bantered about once again, so there is no better time than the present to set thinking people straight. Bush and Cheney want to make permanent unchecked Executive powers to electronically eavesdrop on anyone whom any President feels to be of interest. In August, before the summer recess, Congress enacted the Protect America Act, which provided only temporary approval for the expanding Executive powers under the Foreign Intelligence Surveillance Act (FISA). These temporary powers expire in February 2008, so Congress is once again addressing the subject.

The FISA Amendments: The Administration Is Seeking Immunity for Miscreants

Because of the way electronic traffic is directed from foreign countries through the United States, the FISA Court had previously rejected requests to intercept certain foreign-person- to-foreign-person communications in the United States. It was a technical problem, arising from the fact that FISA was written before modern data routing had been designed, and FISA thus needed fixing. On this, everyone agreed.

However, when the Bush Administration asked for the necessary fix to FISA, it also requested much more, including immunity under the existing laws for all the telecommunications companies that have been assisting the government in its illegal warrantless surveillance. Significantly, this practice - justified by reference to the "war on terror" - apparently started well before 9/11 under the Bush Administration.

Ironically, in requesting this immunity, the Bush White House has refused to disclose exactly what type of activities Congress would be retroactively immunizing. Preliminary congressional inquiry has revealed that a massive amount of electronic surveillance of Americans has gone on under the Bush/Cheney Administration. For example, one of the telecom giants, Verizon, reported that between January 2005 and September 2007 they provided information on 94,000 occasions. These numbers suggest that Verizon was operating as merely another (and a secret) extension of the federal intelligence establishment.

Many of the companies appear to be violating a number of federal criminal statutes - such as 18 U.S.C. 2511, which requires a warrant for such surveillance and 18 U.S.C. 2702, which prohibits any "entity providing an electronic communication service to the public" from knowingly divulging "to any person or entity the contents of a communication" without a court order.

Currently, the telecoms are not likely to be particularly worried about being prosecuted by the very same government that instructed them to violate the law, and is leading the way in doing so itself.

But what about under the next Administration? The five-year statute of limitations will make them potentially criminally liable after Bush is gone - at least, unless the Bush Administration gains for them retroactive and future immunity. In a new Administration, the telecoms may be viewed not as cooperative patriots, but rather as criminal co-conspirators.

Civil Liability Appears To Be Driving the Immunity Request

Meanwhile, civil liability for these companies is also a realistic prospect. For example, in a San Francisco federal court, AT&T customers are seeking to protect their privacy with actions under laws like 18 U.S.C. 2520, which provides a civil remedy and hefty damages -- ranging up to $10,000 per day per violation. Since it is possible that, over five-plus years, there have been tens upon tens of thousands of such violations, the, if liable telecoms could be looking at hundreds upon hundreds of millions of dollars of damages.

The Bush Administration clearly wants to help its partners in crime; it also wants to avoid accountability for what it has done and is still doing. If the civil litigation proceeds - and one judge already ruled that the "state secrets" privilege does not prevent the plaintiffs from going forward - the Bush Administration faces the risk of a federal court's forcing it to disclose its unsavory surveillance activities.

Privacy advocates are horrified at the prospect of Congress's potentially protecting this activity through immunity legislation. Yet, in sharp contrast, most people could care less. Indeed few people seem to care about their loss of privacy, notwithstanding the fact that, like an invisible pollutant to our air or water, it is increasingly eroding our freedom. Unfortunately, it seems that the invasion of our privacy, like the destruction of our atmosphere, may be tolerated until it is too late to fix it.

One of the leading causes of both problems is ignorance. Privacy is a highly complex issue, so people easily accept the claims of those who assert that, if you are not doing anything illegal, you have nothing to be concerned about government surveillance, and if you are, you have no right to privacy to break the law.

Understanding the Misunderstanding about Privacy

For several years I have been reading the work of George Washington University Law School Professor Daniel J. Solove, who writes extensively about privacy in the context of contemporary digital technology. The current apathy about government surveillance brought to mind his essay "'I've Got Nothing To Hide' And Other Misunderstandings of Privacy."

Professor Solove's deconstruction of the "I've got nothing to hide" position, and related justifications for government surveillance, is the best brief analysis of this issue I have found. These arguments are not easy to zap because, once they are on the table, they can set the terms of the argument. As Solove explains, "the problem with the nothing to hide argument is with its underlying assumption that privacy is about hiding bad things." He warns, "Agreeing with this assumption concedes far too much ground and leads to an unproductive discussion of information people would likely want or not want to hide." Solove's bottom line is that this argument "myopically views privacy as a form of concealment or secrecy."

In his work, Solove addresses the reality that privacy problems differ: Not all are equal; some are more harmful than others. Most importantly, he writes, "to understand privacy, we must conceptualize it and its value more pluralistically." Through several years of work, Solove has developed a more nuanced concept of privacy that rebuts the idea that there is a "one-size-fits-all conception of privacy."

The concept of "privacy" encompasses many ideas relating to the proper and improper use and abuse of information about people within society. Privacy protects information not only because it would cause others to think less of the person at issue, but also simply to give us all breathing room: "Society involves a great deal of friction," Solove writes, "and we are constantly clashing with each other. Part of what makes a society a good place in which to live is the extent to which it allows people freedom from the intrusiveness of others. A society without privacy protection would be suffocation, and it might not be a place in which most would want to live."

Professor Solove's work - much of which he makes available online - helps clarify thinking about privacy in its fuller context, and helps explain what is wrong with reductive dismissals of privacy using the mantra, "I've got nothing to hide." Before rushing to give the Bush Administration more ways to invade our privacy, not to mention absolving those who have confederated with him to engage in the most massive invasion of America privacy ever, members of Congress should look at Solove's work. Too many of them have no idea what privacy is all about, and grossly underestimate the value of this complex and essential concept.

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About author John W. Dean is a columnist for FindLaw and a former counsel to the President.