As the details of NSA data collection continue emerge, President Obama has steadfastly defended the NSA’s tactics for domestic surveillance, releasing a White Paper explaining the constitutionality of the actions. This document did less to clarify the ever-opaque practices of the government’s use of big data from American corporations than it did reaffirm the large legal questions that will become increasingly common in the digital age. NSA surveillance efforts, similar to CIA drone strikes, are the first of many cases in which the U.S. government will have to determine how to most responsibly use novel technologies.
In this realm, Obama has decidedly opted for expediency over far-sighted policies that will encourage the judicious use of technology by the government. This has been seen both in the NSA case and the use of CIA drone strikes. Both of these policies have trampled on civil liberties while setting dangerous global precedents on the use of novel technology. These practices not been myopic because they have been ineffective at preventing security threats, but rather because they have not been enacted within a clearly defined, transparent legal framework. By not heeding the constitutional and global precedents set by his actions, Obama is establishing a digital age in which our government and others will increasingly use technology to the detriment of their citizens.
For most Americans, what Edward Snowden revealed about the NSA was surprising, but not entirely shocking. The government has actively sought out data from companies like Google and Verizon to gain intelligence that could prevent terror attacks. With the White Paper, the Obama Administration offered legal defense for this use of the surveillance. However, this document is based on a convenient interpretation of the Patriot Act that remains constitutionally problematic and unclear. It has not addressed the very serious challenges posed to the 4th and 5th Amendment rights of the American people.
The current United States drone policies are also dubiously unconstitutional. Using drones, Obama ordered the deaths of American citizens involved in terrorist cells in Yemen. With insufficient regard for habeas corpus or separation of powers, the president acted outside the realm of his constitutional powers. Again, the legal justifications for these actions have been questionable and not transparent.
Moving beyond the challenge posed to American civil liberties by these actions, the Obama Administration’s policies have also set dangerous global precedents on the use of technology. In the case of NSA Surveillance, the United States has ceded much authority to criticize nations that suppress their citizen's civil liberties with novel technologies. Autocratic governments intent on tracking dissidents’ internet, phone and e-mail records will accurately view the U.S. as an example of a country that has done this effectively.
In the case of drone strikes, by ignoring international boundaries in many countries, most notably Pakistan and Yemen, the United States has ceded its authority to criticize other powers that act upon their acquisition of drones. In the near future, an assertive China or Russia may point to the actions of the U.S. to justify a belligerent use of drones against their neighbors.
The above arguments are not meant to belie the effectiveness of big-data surveillance and drone strikes for security and intelligence operations. As was recently convincingly argued by Daniel Byman, drones are weapons that when used judiciously used, allow for precision strikes with fewer civilian casualties than other weapons like Tomahawk missiles. Targeted surveillance using cellphone records can effectively undermine terror plots. However, the unrestricted and dubiously legal use of these tools erodes civil liberties and sets dangerous long-term precedents.
As was recently shown in Eric Schmidt's new book, The New Digital Age: Reshaping the Future of People, Nations and Business, the world will become increasingly reliant on digital technology. In order to save his digital-age legacy, Obama must promote a concrete, transparent legal framework for the government’s use of new technology in security operations that squarely confronts the constitutionality of data surveillance and drone strikes against Americans. If this is not done, the inevitable proliferation of the technologies in other countries will be accompanied by a lack of global norms to encourage their responsible use.