When Glenn Greenwald of The Guardian published a FISC order requiring Verizon to turn over to the NSA its call records for calls made both within the US and between the US and other countries, I don’t think anyone at the Privacy Law Scholar’s Conference was particularly shocked that this was going on. If anything, we were somewhat pleasantly surprised that we now had some proof that the government couldn’t deny.
The Verizon order was just the first of a number of leaks last week, though, with leaks about PRISM, the President’s cyberwar directive, and Boundless Informant each grabbing the headlines until the next disclosure.
By the end of last week, it was clear that for at least some members of Congress, this was a “We authorized WHAT?” moment. It was also clear that the usual members of Congress would start screaming that Eric Snowden and journalists and publications involved in the leaks should be prosecuted for treason, even though their actions really do not fall under “treason.”
I did not expect to see vast swaths of the public suddenly understand that this has nothing to do with “having nothing to hide,” and was not disappointed to see the usual “the government can surveill me to keep me safe” rhetoric.
And although at least one media source claimed the real story was about the failure of journalism (after the Washington Post did significant silent edits of its original story), I think the real story is the massive failure of Congressional oversight and how the Executive branch has shrouded so much in secrecy and subverted Congress’s oversight obligations. And I think the real story is the government going after leakers and journalists instead of adhering to its promised policy of more transparency.
If the government were more transparent, there would be no issue of charging journalists or leakers with espionage. Yes, I realize that some things may need to be classified but the Bush and Obama administrations have run amok with secrecy and surveillance. It’s time to rein in it. Congress either needs to repeal Section 215 or amend it to make clear that dragnet collection of domestic call records is not permitted and existing databases must be destroyed. They also need to enact legislation that undoes “third party doctrine” and establishes that as citizens, we do have a reasonable expectation of privacy in information held by service providers and telecoms. And they need to protect journalists who, in the best traditions of journalism, inform the public on issues of national significance.
“We have met the enemy and he is us.”
Pogo was right. Our checks and balances failed, subverted by the Executive branch. It’s time to restore the balance and to stop blaming those who tell us what our government should have told us so that we can have had a meaningful national debate. President Barack “I Was Against It Before I Was For It” Obama has said he welcomes a debate. Just tell us when and where, Mr. President, because massive domestic surveillance cannot stand.