In response to CIA Director John Brennan’s flaming of people who care about the Fourth Amendment, Slate magazine has a worthy response.
Since terrorists struck Paris last Friday night, the debate over whether encryption prevents intelligence services from stopping attacks has reignited. The New York Times and Yahoo reported on vague claims that the terrorists’ use of encryption stymied investigators who might have thwarted their plans. CIA Director John Brennan made equally vague comments Monday morning, warning that thanks to the privacy protections of the post-Snowden era, it is now “much more challenging” for intelligence agencies to find terrorists. Jeb Bush piled on, saying that the United States needs to restore its program collecting metadata on U.S. phone calls, even though that program won’t be shut down until the end of this month.
Following a terrorism incident as shocking as the Paris attacks, it is no surprise that politicians and the intelligence establishment would want to widen American spying capabilities. But their arguments are conflating the forest—bulk metadata collection—and the trees: access to individual communications about the attack.
The article goes on to point out that France has extensive surveillance capabilities but that did not help the government prevent the attack.
The United States and United Kingdom’s metadata collection that focuses on the Middle East and Europe is far more extensive than the phone dragnet being shut down later this month, and its use has far more permissive rules. This dragnet is mostly limited by technology, not law. And France—which rewrote its surveillance laws after the Charlie Hebdo attack earlier this year—has its own surveillance system. Both are in place, yet neither detected the Nov. 13 plot. This means they failed to alert authorities to the people they should more closely target via both electronic and physical surveillance. In significant part, this system appears to have failed before it even got to the stage at which investigators would need to worry about terrorists’ use of encryption.
As good as the article is, ultimately it doesn’t matter whether metadata collection was unable to stop the attacks. The Fourth Amendment may leave us less safe than we would be without it. Freedom is sometimes risky.
But it is worth it.
The reason to oppose mass surveillance is because it is wrong, not because we are always safer without it.