Years of disclosures about spying by the federal government have made Americans increasingly wary about mass surveillance regimes, and lawmakers have responded by seeking to impose more restrictions on such programs. But there are indications that targeted deterrence efforts could be on the rise as indiscriminate surveillance recedes.
“I think people are increasingly aware that their privacy is under threat,” Michael Fertik, a Harvard lawyer who founded the privacy-protection website Reputation.com, told the Washington Examiner. “They don’t know how their privacy is threatened, or what happens to their data … they just don’t like invasion of their privacy.”
As a result, lawmakers have taken aim at the surveillance state. “The bulk collection of innocent Americans’ data is not only a government intrusion, but it also overwhelms intelligence agents, increasing the likelihood they miss crucial information,” Rep. Jim Sensenbrenner, R-Wis., said on Dec. 8. “The promulgation that the terrorist onslaught in Paris could’ve been prevented under the NSA’s overbearing bulk data collection program is fundamentally false. It was still in effect at the time of the Boston Marathon and Paris attacks, as well as the lead up to the attacks in San Bernardino.”
Sensenbrenner, who authored the 2001 Patriot Act authorizing greater surveillance, was speaking in reference to the end of bulk metadata collection by the National Security Agency in November. The program, which represented the largest known surveillance regime to date, has occupied a place of particular prominence in public attention, largely because some presidential candidates have continued to lament its end.
Two major bipartisan proposals circulating in Congress are likely to create additional privacy protections next year. One is a bill to reform the Electronic Communications Privacy Act, or ECPA, by requiring a warrant to access information in digital communications like email. The second is a proposal to limit how far local law enforcement agencies can go in conducting the same sort of bulk surveillance previously performed by the NSA.
In part, bulk data collection has been a necessity of the Obama administration, which believes targeted collection is inappropriate. Presidential Policy Directive 28, promulgated in 2014, declared that intelligence services “must take into account [that] all persons should be treated with dignity and respect, regardless of their nationality or wherever they may reside and that all persons have legitimate privacy interests.” The order applies to citizens and noncitizens alike.
Yet as the legal architecture surrounding surveillance capability evolves, indiscriminate data collection is becoming more difficult, and calls for targeted deterrence mechanisms are becoming a hallmark of this year’s end.
For instance, Sen. Dianne Feinstein, D-Calif., has been working on legislation to require social media sites like Facebook to report suspicious activity to law enforcement agencies. “Note that it does not require companies to look for it, merely report it when they come across it,” said Tom Mentzer, Feinstein’s press secretary.
Speaking at the Brookings Institution on Dec. 6, Democratic presidential front-runner Hillary Clinton called on Silicon Valley to work toward “depriving jihadists of virtual territory, just as we work to deprive them of actual territory,” by shutting down websites affiliated with terrorist groups. Days later, Republican front-runner Donald Trump echoed her sentiment, saying he would support “maybe in certain areas, closing that Internet up in some way.”
It is worth noting that both front-runners support bulk surveillance regimes of some nature. However, it is also notable that both see a need for targeted deterrence mechanisms that the Obama administration has not sought.
When it comes to actual surveillance, legislative proposals have been going in the direction of requiring increased specificity. The same legislation that ended the NSA’s bulk collection program still allows the federal government to obtain the same information by requesting it from telephone companies, but also requires it to seek a warrant naming a particular individual, device or account beforehand.
Yet while the trends of 2015 may persist in the new year, they will not necessarily hold in the decade to come. “I’m not sure it’s going to persist in the coming years. If you have a Chris Christie as president, a Donald Trump, a Hillary Clinton, I think there will be a second life for mass surveillance,” Fertik said.
“Mass surveillance can be useful at figuring out probabilistic threats. The problem is in over-predicting those threats,” he added. “It’s not always the most useful instrument.”
