Was Apple protecting people’s privacy or its corporate interests when it wouldn’t help the FBI get information from a terrorist’s iPhone? When Edward Snowden released a trove of secret information about national security operations, was he a whistle-blower or a criminal? Did the Patriot Act of 2001 open the door too wide to mass surveillance of Americans?
More broadly, where should the line be drawn between trying to protect the nation from terrorism and protecting the rights and liberties of Americans?
These are all complicated, interesting, and timely questions—and all were discussed during a provocative half-day program at Marquette Law School on June 2 that brought together leading national figures to shed light on these issues before a full-house audience in the Appellate Courtroom.
No conclusions were announced, nor was there any intention of doing that. Rather, as Law School Dean Joseph D. Kearney put it at the end, “We have accomplished something that is very much our essential purpose,” which is to allow people, especially attorneys, to learn a good deal more about important issues.
A few glimpses of what speakers said at the conference illustrate Kearney’s conclusion.
Faiza Patel, co-director of the Liberty and National Security Program of the Brennan Center at New York University Law School, led off the conference with strong criticism of the power, reach, and (in her view) limited efficacy of the National Security Agency in monitoring electronic communications.
Even after the Snowden revelations, there is a dearth of knowledge of how much surveillance the NSA does, Patel said. She said the Foreign Intelligence Surveillance Court, often referred to as the FISA Court, continues to operate in ways that are too secretive and non-adversarial. Congressional oversight of intelligence gathering is ineffective, she said.
Michael B. Mukasey, who was U.S. attorney general from 2007 to 2009, disagreed firmly on close to every one of Patel’s points. “According to what you’ve just heard (from Patel), the NSA greeted 9/11 by instituting a program in which it riffles through information belonging to Americans, having absolutely no effect at all on terrorism, doing nothing to fight terrorism, simply satisfying promiscuous curiosity or promoting some other impermissible but secret government purpose that has affected the lives of all of us, but none of us can point to a particular way in which it has affected us. That frankly strikes me as utter nonsense. The fact is that we are engaged in a war with a death cult.”
He said electronic surveillance, at the time he was attorney general, was appropriate. If we stop monitoring domestic and overseas communications, there will be more attacks such as the one in San Bernardino, Calif., in December 2015 that killed 14 people, he said.
Patel said reports from the NSA indicated that its work has had almost no impact in breaking up terrorist planning. Mukasey disagreed.
Patel said Snowden has served as a whistle-blower against excessive surveillance. Mukasey called Snowden a criminal who had harmed American security operations and who had a “bizarre” personal political history.
Snowden has been in Russia for several years since the United States revoked his passport. Patel said, “I doubt he’s very comfortable in Russia.” Mukasey responded, “Good.”
Rep. James Sensenbrenner of Wisconsin described his central role in legislation on national security programs since the September 11, 2001, terrorist attacks. He recounted how a bill known as the USA Freedom Act was approved in 2015 after facing opposition from President Obama and congressional leaders in both parties. The law reduced the latitude of the federal government in collecting bulk data such as phone records of Americans. “A year later, I’m very pleased by how this law works in practice,” Sensenbrenner said.
Sensenbrenner said security and liberty both can be protected, and an important part of accomplishing that is for all three branches of government to do their jobs well.
In a discussion on local uses of national security tools, Milwaukee Police Chief Edward Flynn said that cooperation between local police and the FBI has improved substantially since the 2001 attacks. Local police are important partners with the FBI in investigations related to security, drugs, and other matters, Flynn said, simply because there are so many more police officers than FBI agents. Milwaukee police, Flynn said, “always error on the side of caution” in using surveillance and searches, although they do actively monitor “open source” information, such as Facebook postings.
Federal Judge Pamela Pepper of the Eastern District of Wisconsin said that all searches need to be done within the limits set under the Constitution, but the nature of some of the high-tech devices available today makes things “a little bit messier” than the traditional notions of what is a search. Asked by former U.S. Attorney Steven Biskupic if things posted in places such as Facebook are protected from searches, Pepper said there is a legal concept of protecting privacy within reason, but “courts are struggling hard to figure out what that reasonable expectation of privacy is.”
Mike Gousha, the Law School’s distinguished fellow in law and public policy, asked Janan Najeeb, president of the Milwaukee Muslim Women’s Coalition, if she felt her individual liberties have been affected by security concerns. “Absolutely,” she answered. She said Muslims who are law-abiding and educated have become suspect often.
Nejeeb said the security enforcement system is not effectively dealing with the problem it aims to address. More non-Muslims, such as white supremacists, have been involved in terror incidents in recent years than Muslims, she said, “yet the conversation is about the problem of Muslim terrorism.”
The liveliest debate of the conference involved Alex Abdo, a staff attorney with the American Civil Liberties Union’s Speech, Privacy and Technology Project, and Stewart A. Baker, a lawyer from Washington and former first assistant secretary for policy of the Department of Homeland Security. They took opposite sides on several issues in a discussion titled “The Intersection and Conflict Between National Security and Technology.”
Abdo said that many in the security community warn that the internet is “going dark” as encryption technology becomes better and more widely used, preventing investigators from using their authority to search communications. Abdo disagreed with this view, saying, “Never has the government had more access to more information about every single one of us than now. . . . Our lives have never been more transparent to government.”
He said prohibiting encryption or giving government “back doors” to crack encryption would be “disastrous for cyber security.”
But Baker said this is not only the golden age of surveillance, it is the golden age of terrorism, and steps are needed to deal with that.
Debating the case in which Apple fought attempts to get to data in the San Bernardino IPhone, Baker said the company tried to create “a reality distortion field” around the debate in an effort to sell more of its products. “Their arguments are simply hypocritical in the extreme,” he said.
He said that when government agencies have tried to get cooperation from technology company leaders, they often are met with arguments that boil down to this: “We’re smart. We’re rich. You’re not. We win.”
“National Security, Individual Liberty, and You” was sponsored by the Law School, the Milwaukee Lawyer Chapter of the American Constitution Society, and the Milwaukee Lawyers Chapter of the Federalist Society and received support from the Law School’s Lubar Fund for Public Policy Research. Video of the conference is available here.