How Much Information Can Government Collect to Protect National Security?

The recent revelations about the National Security Agency’s dragnet surveillance programs highlight three significant developments that have occurred in the national security domain in the past decade. First, the most significant foreign threats to national security are no longer nation-states but individuals armed with powerful weapons who operate independently of any country. Second, technology has vastly enhanced the government’s capacity to discover and prevent these threats. Third, technology has also both reduced individual privacy and conditioned people to surrender it without qualms.

These three developments, Simon Chesterman argues in One Nation Under Surveillance, mean that regulation of intelligence agencies needs to be rethought. While the traditional civil libertarian efforts to limit camera surveillance, data mining, biometric identification, and other types of intelligence gathering are “worthy,” he says, ultimately they are “doomed to failure because modern threats increasingly require that governments collect [such information], governments are increasingly able to collect it, and citizens increasingly accept that they will collect it.” Instead, Chesterman argues, governments should concentrate on regulating the use of the intelligence it collects, pursuant to publicly debated laws that provide a transparent framework for making decisions about how and when to disseminate the information obtained. As the subtitle suggests, this regime can be seen as a form of “social contract” in which citizens grant access to information about them in return for “a measure of increased security and the convenience of living in the modern world.”

More specifically, Chesterman argues for the adoption of three principles. The first principle is the “the essentially public nature of the power being exercised.” The second is the “the need to ground that power in the rule of law.” Finally, he stresses “the importance of addressing not merely the collection of intelligence but its use by the state and all those with whom the intelligence is shared.”

It is hard to quibble with these three principles. But Chesterman’s thorough critique of past and current practices also makes one pessimistic about the ability to implement them. For instance, the first principle requires public debate about how intelligence-gathering should be regulated. But in the wake of 9/11, the most popular view may well be the one expressed by Director of Intelligence Mike McConnell in commenting on the U.S. Congress’ deliberations over national security wiretapping: “The fact we’re doing it this way means that some Americans are going to die.” Similar objections have been raised about further exposing the NSA’s phone record collection activities. Chesterman’s public principle is also hostile to unjustified privatization of intelligence work; Chesterman rightly argues that part of the problem here is the legislative failure to define those “inherently governmental activities” that may not be outsourced. Yet, even he is hesitant about placing surveillance or analysis of the fruits of surveillance in that category. As he notes in Chapter Six and the NSA controversy again highlights, mass surveillance cannot succeed without private communication companies, and data analysis is sometimes best carried out in think tank-like settings such as the Rand Corporation.

Chesterman’s book also does not inspire hope about the type of law that debate (whether it is carried out in public or private) is likely to produce, and thus also calls into question the viability of his second, rule of law, principle. Chesterman provides example after example of elastic legislative or regulatory rules that either exempt or place only minimal restrictions on government intelligence officials, as well as numerous illustrations of how those who are supposed to “watch the watchers” have been unable or unwilling to do so. It is telling that, as he notes, most of the reforms that have occurred are the result of media diligence, not the consequence of government oversight (again, see the NSA controversy). One of the best quotes (of many) in the book is Congressman Norman Minetta’s description about why legislative monitors are like mushrooms:  “the intelligence community ke[eps] them in the dark and fe[eds] them a lot of manure.”

Chesterman is not claiming, however, to have found a method of ending abuse, only a framework for containing it. The broad outlines of government authority can certainly be subject to the political process, as has occurred with the Patriot Act in the United States and the Security Service Act in Great Britain. Perhaps most importantly, publicly enacted statutes can set out which agencies are permitted to carry out national security operations and to what extent. In the United States, which has 16 agencies involved in intelligence-gathering, this latter goal ought to be paramount.

The importance of bureaucratic role definition comes to the fore in implementing Chesterman’s third principle, to the effect that regulation should focus on the use, rather than the collection or retention, of information. As he puts this idea in his last chapter, “accountability for the activities of intelligence services must be consequence-sensitive.” Few limitations should be placed on gathering data, but its dissemination should be closely monitored.

As I have written elsewhere, several objections to this focus on use-regulation can be raised: “[L]imiting information flow [among government agencies] can be very difficult . . . .  And even if the information gathered  . . . is somehow confined to a limited and discreet group and is not misused or inaccurate in any way, routine suspicionless and covert transaction surveillance can eat away at whatever trust is left between government and its citizenry. . . .”1 Now that we know more about what the NSA is doing, all of us feel less secure about the government’s agenda. Chesterman does not completely discount these points, but views them as naïve in return. Government, he says, already is acquiring vast amount of information about each of us and will continue to feel compelled to do so given current threats. Furthermore, he asserts, most of us are willing to accept that tradeoff (his “social contract”). Thus, rather than try to draw fine lines about what can and cannot be collected, and from whom, we should accept the full consequences of such a contract. Rather than profile, he suggests, everyone should be subjected to airport checks. Rather than limiting DNA sampling to convicts, the database should be universal.

Chesterman is to be congratulated for sharpening one of the most important debates of our time, a debate that is particularly intense at the current moment. I think his stance ultimately is a sustainable one, under two conditions, both consistent with his three principles. First, an elected body that is truly representative of the affected polity must authorize these types of surveillance dragnets, on the express understanding that its members too will be subjected to them. Second, use of information so obtained must be limited to preventing or prosecuting serious threats, upon pain of significant penalties. This is a social contract that a democracy should find acceptable. We may soon find out whether that is the case.

Further thoughts on Chesterman’s book, as well as commentary about another recent book on related matters by Stephen Schulhofer,2, can be found in What is the Essential Fourth Amendment?.

  1. Christopher Slobogin, Privacy at Risk:  The New Government Surveillance and the Fourth Amendment 200 (2007). []
  2. Stephen Schulhofer, More Essential Than Ever: The Fourth Amendment in the Twenty-First Century (2012) []
Cite as: Christopher Slobogin, How Much Information Can Government Collect to Protect National Security?, JOTWELL (July 24, 2013) (reviewing Simon Chesterman, One Nation Under Surveillance:  A New Social Contract to Defend Freedom Without Sacrificing Liberty (Oxford University Press, 2011)),