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National Insecurity Administration

March 26, 2012

I could probably begin about 1/4 of my blog posts with “Not that we have privacy anymore anyway, but…” (which says to me that I need something new to say), but here goes anyway. In the latest incremental–and therefore undetected–encroachment on our rights to have some semblance of data privacy, the Executive Branch has made a decision to retain information collected on basically every American that has ever touched a device connected to the internet for a period of up to 5 years, regardless of whether or not they are suspected or accused of any terroristic activity or connection.

I say Executive Branch, rather than Obama Administration, because I believe this is simply a function of mission creep, and not the Obama Administration in particular. The Bush Administration had made the similar choice, but only kept the data for 180 days instead of the newly proposed 5 years. The fact that Obama is the one who has presided over the expansion probably reflects very little on his opinions regarding data privacy, and instead reflect the solid and absolute unwillingness of any executive to be seen as “the one who allowed the next 9/11 to happen.”

The functions we ask government to do, most prominently including national security, require certain power ceded from the people to its government in order to do that job. It is a basic premise of the American system of government that powers be granted to government by the people because the people presumptively retain all freedoms and powers not already granted to the government. Those powers we vest in government include the power to infringe upon our presumptive privacy. Back in 1974, the Privacy Act ceded some of that privacy to government on certain conditions. However, now that the flip-side of the equation is “another 9/11,” the calculus is all off. There only needs to be the thinnest of veneers of a justification (i.e., “another 9/11”), and Americans gladly authorize every expansion of government power desired. Because we can’t possibly know what they really need to do their job, and this is what they’re telling us they need. The need for opacity is inherent to the properly conduct of a counter-terrorist operation, and therefore, so too is mission creep inherent in the request for power. But do we really need to build government a “heavily fortified $2 billion eavesdropping Death Star center” to spy on us?

Regardless of whether or not the collection and processing of data is justified in a military/strategic sense (it may well be), there is no reason that we shouldn’t try to force justifications to come to the fore as often as possible, especially when we are at a point where we can roll back some of the mission creep. For example, do we really think that the TSA guidelines imposed post-9/11 have really done the work to prevent another terrorist attack? In light of the myriad examples of people who have sneaked something through security, I can’t imagine that it was the TSA guidelines that really did anything. More likely, the fact that everyone is attuned to the danger posed by commercial flights has foreclosed the possibility of terrorists trying another 9/11-style attack.

And just how sure are we that government is actually deleting the data after 5 years? And just how secure is that data in the interim? For that matter, why don’t we review whether or not these security measures are worth the blessings of liberty? That’s what the FTC has finally decided to do (given the strictures of the administrative law process it deals with) in asking internet services companies to have privacy/do-not-track built in to their products absent a showing of at least a facial justification. And it’s not like it’d be hard for the military/NSA to actually justify itself on a case-by-case basis, but the new rules deny any need for any justificatory circumstances, and that is troubling.

At the end of the day, the problem is about mission creep. If the government (or, if you prefer the more pejorative “military-industrial complex”) is going to keep asking for more power, shouldn’t we be asking them to justify why they shouldn’t have less, at least every once in a while? Or does the country just have its presumptions about the source of government’s power backward?

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