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Teaching about Privacy and Surveillance: Real Life is not an Episode of ‘24’

November 5, 2015 Leave a comment

Privacy is an increasingly important social implication of technology, and we spend quite a bit of time about it in our required undergraduate ethics and social implications of technology class, CS 4001. Since we’re talking about privacy, it makes sense to talk about surveillance. Since 2004, I’ve taught a class about The USA PATRIOT Act, and more recently I’ve added a class on information revealed by Edward Snowden. I spend more time preparing for those classes than for any other two or three put together—it’s confusing and complicated. There are provisions of the Patriot Act that are absolutely essential—like broadening the jurisdiction of warrants to tap phones to the entire country (rather than making you get a warrant in each state). And others that are egregious violations of our liberty—like the section 215 provision that lets the government get the records of any organization without a warrant or probable cause and bars the organization from acknowledging the search. The FBI can simply demand the membership list of a mosque—and they have done so. For the last two years, I’ve assigned my students to watch the PBS Frontline documentary United States of Secrets, about US warrantless surveillance (“The Program”) and information leaked by Edward Snowden. In our class discussion, we don’t focus on Snowden, but on other people—like NSA analyst Thomas Drake—and the tough decisions they had to make. After class on Tuesday where I carefully spell out what’s allowed under the Patriot Act and the Foreign Intelligence Surveillance Act (FISA), I feel like a bit of fool on Thursday when we discuss The Program and the fact that all those rules aren’t really followed anyway.

I do my best not to express any opinions to my class—I present the facts, and ask them what they think. And as much as possible, I emphasize tradeoffs and try to show the issues as complicated. And then I walk back from class and scratch my head—what do I actually think?

After class last week, two things became clearer in my mind. The first is about checks and balances. My children are learning about checks and balances in elementary school social studies class. Checks and balances are fundamental to how our government works. And it suddenly became evident to me that most cases of the system going too far are situations where checks and balances are not occurring. You don’t need a court order to get records with a National Security Letter (NSL). Why not? A secret court like the FISA court could do the job. And if it’s urgent, the review could take place within a reasonable time after the fact (as FISA mandates for surveillance.) It’s too much to ask any one branch of government to police themselves. The FBI needs to pursue things as aggressively as they dare, and the judiciary needs to say, “You may go this far and no farther.” Parts of the Patriot Act removed checks and balances, and procedures without checks and balances are where we get into trouble. Everything you need to know we all learned in elementary school—but somehow, we’ve forgotten it.

The second thought is about means and ends. It is possible for me to describe a fictional situation in which reasonable people would agree that that the ends justify evil means—like recording everyone all the time, or torturing someone for information. If you don’t agree with that statement, make the situation more extreme until you do. But in real life, the evidence for the need is almost never that compelling. If you demand an iron-clad case, you’ll (almost) never say the ends justify evil means in real situations. Real life is not an episode of ’24’.

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Why teach about the USA Patriot Act if the government doesn’t even follow it?

Most fall semesters I teach CS 4001 “Computers, Society, and Professionalism.” I love the class–we cover ethics, argumentation, professionalism, and the social implications of technology. As part of the class, I always teach a lecture about the USA Patriot Act. It’s a labor of love–it takes me three or four times as long to prepare for that class than any other class in the semester, because it’s so complicated and there’s always new news to sort through. Were the “gag order” provisions found unconstitutional or not? What’s the difference between the Protect America Act (which expired) and its new incarnation in the the FISA Amendments Act?  The details go on and on.  I teach class in a studiously neutral way–There are tradeoffs between security and privacy, and where to draw the line is complicated.

PBS Frontline has come out with a new three-hour documentary “United States of Secrets” which takes on a lot of these issues. I highly recommend watching it.  What the US government has been actually recording goes well beyond what is authorized by the Patriot Act. But what I found most depressing about it was not that we are being spied on, but that some government officials apparently have been ignoring the rule of law. For example, the NSA constructed a tenuous theory to give them permission to record basically everything, and the US Attorney General signed off on it. OK, I don’t like the theory, but at least there was an attempt at legality.  But later when the Attorney General changed his mind and decided the program was illegal, the NSA just asked the White House Council to sign off on it instead. Really?  Mom said no so you ran and asked Dad?  (More like Mom said no so you ran and asked your uncle.)  And then there are the videos of the President and other officials flat-out lying to the public and to congress.  They didn’t say “I can’t discuss that”–they lied and said the surveillance wasn’t happening.

It was heartening to see the whistleblowers profiled in the film. There are plenty of good people who tried to speak up–going through every possible internal proper channel before finally going to the press. Our class covers ethical procedures for when and how to become a whistleblower, and the whistleblowers profiled followed those procedures impeccably. And these aren’t civil libertarian liberals–they are pro-defense conservatives who are appalled by what is going on. But in another depressing turn, the government then goes after the whistleblowers, turning their lives upside-down.

What’s the point of teaching students about a law if what the law says doesn’t change how the government actually operates?

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