The startling revelations that have slithered out of the government’s secrets box over the past couple of years have Americans talking as never before about the tradeoffs presented when the needs for security and privacy collide.
From the Department of Justice tracking down phone records of Associated Press journalists, to Edward Snowden’s leaked information about the NSA PRISM Program, to the government’s order for Verizon to turn over metadata in the form of call logs to the NSA, the balance between privacy and national security has seldom been more hotly contested.
Four experts examined the controversy in depth at the Columbus School of Law on Oct. 22, when “The New Age of Government Surveillance” was presented and co-sponsored by seven organizations within the law school.
The discussion panelists—from the Newseum’s First Amendment Center, the National Security Project of the ACLU, the government and private practice— debated government surveillance from a variety of perspectives and at times appeared as deeply split as the general public.
“When you have seven years of private phone records, there’s quite a lot you can tell about someone’s life,” commented Brett Max Kaufman, a Fellow in the ACLU's National Security Project. Kaufman said government-granted access to phone and email records of private citizens in pursuit of terrorists “does inevitably sweep in Americans’ data. It is misleading to think of this as only a foreign collection program.”
Jamil N. Jaffer, Republican chief counsel and senior advisor to the United States Senate Committee on Foreign Relations, observed that while the nervousness over government surveillance programs is understandable, both Republican and Democratic administrations, as well as a number of courts, have so far found such intelligence gathering methods perfectly legal.
That drew a strong response from CUA Law alumna Anne McKenna, 1994, who chairs the Internet and Privacy Law Practice Group as a partner with Silverman, Thompson, Slutkin, White in Baltimore.
“We don’t have a decision from any court that’s not a secret court that authorizes what’s been going on,” McKenna challenged. “Is it okay for NSA to check contacts of contacts of contacts? Our electronic privacy laws are so out of date it’s painful."
Some of the most anxious comments were directed at the government’s collection of the phone records of journalists to identify and punish leakers.
Gene Policinski, senior vice president of the Newseum’s First Amendment Center, is a veteran journalist who decried its “chilling” effect on newsgathering.
“What we’re seeing is this gathering storm about the ability of sources to speak to reporters,” said Policinski. “You’re not paranoid if they’re really after you. And they’re after us.”
McKenna agreed. “Obama’s administration is going after and prosecuting journalists. It’s not a Republican or Democratic issue. It’s a free society issue.”
Most of the panel agreed that the winds of change must first incubate within Congress, which has not provided a current or helpful legislative framework from which courts and government agencies can interpret the legal limits of intelligence gathering.
Kaufman called the situation in 2013 a “reverse engineering” of legal authority, one in which lawmakers have little comprehension of the scope of what has been happening.
“Many members of Congress had no idea what was going on under the auspices of these programs,” said Kaufman. “Government’s intentional over-collection of data has not really been tested as a legal theory.”
Second year law students Michelle Lease and Michael Flynn served as moderators. Both are members of the Columbus School of Law’s Law and Public Policy Program.