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It’s been a month since John Kline first raised concerns of widespread surveillance of our personal communications and Internet use by law enforcement and the intelligence community. In that time, we’ve learned from news reports that our private information has been gathered in the name of combating terrorism and child pornography and in “routine” investigations of domestic violence or other crimes.
In this article, John outlines six important questions we need to grapple with as a nation. It is no accident that these questions come from those seeking answers to issues that are central to democracy and freedom – national security and civil rights.
What are the government’s obligations to safeguard privacy?
First, we must examine how our law enforcement agencies exercise their limited authorities under the Constitution. Our laws give them broad exceptions, and the Supreme Court has given them considerable leeway.
But how much authority do law enforcement agencies have, and how do they go about exercising it – and how much does the public trust and their discretion in the process?
In fact, there is widespread disagreement about the extent of government authority to conduct investigations.
In 2001, Congress enacted the USA PATRIOT Act. A year later, the Justice Department and the FBI implemented a new program for collecting bulk telephone and Internet metadata, called the “Terrorist Surveillance Program.” In 2004, President Bush signed a National Intelligence Authorization Act (NIAA) that gave the FBI the authority to conduct surveillance based on foreign governments’ complaints about American domestic activities and activities of foreign embassies and consulates. The NIAA went into effect in 2008 and has been modified twice since then to clarify who can be included in these categories.
Most people would object to having the government listen to our phone calls or read our e-mails without a warrant based on probable cause. But in practice, no one doubts that government officials might seek and obtain such warrants. And indeed, one of the few areas where broad surveillance authority has not been used in this fashion has been the monitoring of terrorist communications and the tracking of criminals. Some have raised questions about this approach in light of the NSA revelations.
So how much of our personal information is routinely collected?
It is hard to answer this question. A February 2011 study issued
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