As the weeks roll on it has become clearer that the NSA has cast a very large, very fine, net over all communications in, out, and through the US. If the NSA is to be believed then they do their very best not to capture American communications, but they regularly fail at avoiding such capture — instead relying on their vague “minimization” techniques to make up for the capture of American communications.
One of the reasons this is such a hard debate to solve, is that there are a lot of moral decisions that need to be made — questions that need answers.
The first question we need to answer is: Should the NSA and other federal agencies be allowed to use any and all technology available to catch criminals and terrorists? I believe the only answer to that question is an emphatic yes. The next questions are trickier:
- Should these agencies be allowed to act without direct oversight?
- Who oversees these agencies and their policies?
- Should the laws governing these agencies be made in secret to protect law enforcement abilities?
- How much should be known publicly?
I could go on. I am, surprisingly, in favor of most of what the NSA is doing, but the current oversight seems to be totally insufficient. The program should be openly debated in Congress, approved through normal courts, and FISC should only be used for specific people that the government believes are far too high risk to hold a debate over in open court. And even in those circumstances the rulings should be made public after twelve months — no redactions.
The one question I keep tripping over: How, and for how long, should the government retain information they gather about individuals? Additionally, when and who authorizes searches within that retained data?
Essentially let’s say (purely theoretically and simplified) that the NSA holds a database on every email sent — ever. With the interests of the nation in mind, I cannot figure out the following:
- How should that database of emails be stored?
- Should the NSA be allowed to store this data indefinitely, indiscriminately, or should it be filtered and deleted, or just deleted based on dates?
- When should this data be allowed to be searched? By court order? By suspicion? By lovers?
There are many problems here, because quite simply the more data the better when it comes to truly preventing bad things. I acknowledge that, but we also cannot be a nation scared to speak for fear it may show up on a boolean query by an underpaid NSA worker.
Had 9/11 been totally planned via email, then clearly there’s a lot of benefits to indefinite storage and easy searching of email data. When the first plane hits, the NSA knows exactly what to look for and maybe, just maybe, they know what is going on before the other planes strike. At the very least, they know the scope of the attack. That’s a great argument in favor of keeping everything, allowing easy searching, and so forth. I truly believe that FISAA, FISC, and the NSA created these tools and are using them with this mindset.
But there’s a flip side to all of this. What if two idiots get drunk and hatch a plan that sounds a lot like terrorism. They communicate over channels monitored by the NSA and get flagged. The plans seem detailed and the “voice” of the messages seems intent on execution. Should the NSA swoop in then? Should they wait until it’s too late? If they swoop in right away, then we never know if that plot would have been carried out. Is that the society we want to live in?
Further, if those people are only observed then many hours have been wasted watching people that never do anything while others slip by.
Now think about this: The FBI catches a person, the suspect of terrorism, based on a couple of illegal items they find in their house. Normal penalty (making this up) is five years in prison. But the FBI asks the NSA to run a little search, and it turns out the guy was one of two drunk idiots sending the emails described above. Now what? He’s still only guilty of being an idiot in possession of illegal items, but because of the emails should the punishment be harsher? Why? He still only did one thing against the law…
I can’t answer a lot of these questions, which is exactly why I think this is a topic for public debate in Congress. I just hope the president gives us that chance. There’s no correct decision to be made, but there is a sound decision with good reasoning. That’s all I want.