If No One Says Nay, The Government Assumes Yea

Summary:

The government has recently been getting a lot of heat over their data-gathering activities.  In response President Obama has requested that the various branches of the intelligence community strive for greater transparency.  As part of that endeavor there has been released an official opinion by Judge Claire Eagan, which essentially explains why she re-authorized the collection of phone records from various, undisclosed, phone companies, over a period of three months.  The article I read today was not, however, that opinion.  It was instead this article, which focuses on the fact that when they were asked in the past for the records apparently none of the phone companies protested, even though there were clear channels for doing so.  This played a part in the re-authorizing of the process more recently.  What is the ethical issue?  Well, just because it’s legal does that make it right?  And is the government so big that companies can’t protest even if they wanted to?  Well, let’s think about this, okay?

Analysis:

Here’s the deal: since 2006 there has been a law which allows the government to collect phone records from phone companies for 90 days.  Every 90 days this law is renewed, and so the government has had access to phone records for the past 6-7 years, relatively uninterrupted.  Because of all the heat recently Judge Eagan defended her position, saying that it is legal, and has been uncontested all this time, so there’s no reason to not re-authorize it.  This all sounds well and good, but there are at least three things which have to be noted before thinking this through.  First is that while the phone companies may not have protested, Yahoo claims that it vehemently protested when it was ordered to hand over it’s records, but those protests (which are sealed records) were overruled.  Second is that according to Jameel Jaffer, of the ACLU, there have been significant changes in precedent since 2006, including a case involving GPS, which significantly changes the legal landscape, and necessitate a more rigid re-examination of the law than that given by Judge Eagan.  Finally, Judge Eagan’s opinion admitted that there have been times when the National Security Agency (NSA), the agency in charge of all the data-collection, has circumvented the limits placed upon them, such as the need for warrant, but stated that measures have been taken to correct the problem.  (Information regarding Jameel Jaffar and this last point were taken from this article).  Let’s look at each of these issues in turn.

First, the protests of Yahoo.  It may very well be that the phone companies did not protest to giving over their records.  But if Yahoo did protest, and it made no difference, then perhaps the phone companies simply didn’t see the point.  It becomes like the school bully who is messing up a kid, and when the teacher comes up and asks if anything is wrong the bully says no, and the bullied kid is too scared to say otherwise.  The fact that Yahoo protested and was shut down speaks volumes about the options available to companies on the receiving end of the NSA’s data-collection.  If they can’t protest effectively, then it would make sense that they wouldn’t even try, since protesting would just be a waste of time and money.  The government has effectively shut up any opposition with the threat of failure, especially now that Yahoo has failed.  This is clearly not a situation that we want our country to be in, one where the government can do what it wants, and no one can say nay.

Second: the ignoring of precedent.  This ties in with the previous point, in that they both deal with changing times.  The original phones record collection law was passed back in 2006.  That was 7 years ago now, and things change.  Phone companies didn’t think to much about giving up records back then, but Internet providers think giving up the same information is highly inappropriate.  In the same way the legal scene in 2006 wasn’t very preoccupied with privacy, but now it is.  Many new laws have been passed which significantly change the way that the government is allowed to interact with its people, and laws which are coming in from the past ought to change to reflect that.  To simply ignore the fact that things have changed is very irresponsible, and undermines the transparency that the government is aiming for.

Finally, the ignoring of rules by the NSA.  This is probably the most serious of the three problems.  The fact that the NSA has at times failed to comply with standards placed on them with regard to the handling of the information they receive in troubling.  By giving them access to the information they have we are very explicitly trusting them to not use that information inappropriately.  By breaking that trust they have made it impossible to ever truly trust them again.  And if we can’t trust them to use our information responsibly, then they should not have access to it.  Proverbs 11:3 says that “Honesty guides good people; dishonesty destroys treacherous people.” (NLT).  They have been dishonest in their use of our information, and that will ultimately lead to destruction.  Who exactly will be destroyed remains to be seen, but dishonesty cannot lead to anything but problems.

Conclusion:

There are quite a few problems with NSA being re-given access to America’s phone records.  There doesn’t not appear to be any true way to protest the records seizure.  It may not be completely legal in view of recent developments in law. And the NSA has demonstrated that they cannot be trusted with the amount of information they are being given.  What should be done about this? Well, the NSA needs to be limited.  I still hold that they do good work, and they need information to do what they do.  But they do need stronger limits, not simply to keep them from misusing the information, but also to keep watch and make sure that they don’t try to get around their limits.  Also, there needs to be stronger protocols regarding the acquisition of a warrant before gathering information, so that they only get information they need.  We need to control what they get, not only what they use of what they get.  They cannot go around safeguards and browse through phone records if they have not already been given those records.

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