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Protecting Individual Privacy in the Struggle Against Terrorists: A Framework for Program Assessment
or contingency, government authorities should seek to change the law rather than to circumvent or disobey it.
A willingness of U.S. government authorities to circumvent or disobey the law in times of emergency is not unprecedented. For example, recently declassified Central Intelligence Agency (CIA) documents indicate widespread violations of the agency’s charter and applicable law in the 1960s and 1970s, during which time the CIA conducted surveillance operations on U.S. citizens under both Democratic and Republican presidents that were undertaken outside the agency’s charter.3
The U.S. Congress has also changed laws that guaranteed confidentiality in order to gain access to individual information collected under guarantees. For example, Section 508 of the USA Patriot Act, passed in 2001, allows the U.S. Department of Justice (DOJ) to gain access to individual information originally collected by the National Center for Education Statistics under a pledge of confidentiality. In earlier times, the War Powers Act of 1942 retrospectively overrode the confidentiality provisions of the Census Bureau, and it is now known that bureau officials shared individually identifiable census information with other government agencies for the purposes of detaining foreign nationals.4
Today, many laws provide statutory protection for privacy. Conforming to such protections is not only obligatory, but it also builds necessary discipline into counterterrorism efforts that serves other laudable purposes. By making the government stop and justify its effort to a senior official, a congressional committee, or a federal judge, warrant requirements and other privacy protections often help bring focus and precision to law enforcement and national security efforts. In point of fact, courts rarely refuse requests for judicial authorization to conduct surveillance. As government officials often note, one reason for these high success rates is the quality of internal decision making that the requirement to obtain judicial authorization requires.
Premise 3.Challenges to public safety and national security do not warrantfundamental changes in the level of privacy protection to which nonterroristsare entitled.
The United States is a strong nation for many reasons, not the least of which is its commitment to the rule of law, civil liberties, and respect
M. Mazzetti and T. Weiner, “Files on illegal spying show C.I.A. skeletons from Cold War,” New York Times, June 27, 2007.