Academic journal article Texas Law Review

Choosing Both: Making Technology Choices at the Intersections of Privacy and Security

Academic journal article Texas Law Review

Choosing Both: Making Technology Choices at the Intersections of Privacy and Security

Article excerpt

Advanced technology and its creative application remain a comparative advantage for the United States, but we fear that the Intelligence Community is not adequately leveraging this advantage .... And this problem affects not only intelligence collection; we also lag in the use of technologies to support analysis.1

It's six minutes before midnight as a surveillance society draws near in the United States. With a flood of powerful new technologies that expand the potential for centralized monitoring ... we confront the possibility of a dark future where our every move, our every transaction, our every communication is recorded, compiled, and stored away, ready for access by the authorities whenever they want.2

[T]he [Intelligence Community] must exemplify America _ values: operating under the rule of law, consistent with Americans' expectations for protection of privacy and civil liberties, respectful of human rights, and in a manner that retains the trust of the American people.3

["Buridan' s ass":] a paradox whereby a hungry and thirsty donkey, placed between a bundle of hay and a pail of water, would die of hunger and thirst because there was no reason for him to choose one resource over the other.4

When you come to a fork in the road, take it.5

Technology plays a critical role in intelligence activities, enabling intelligence agencies to pursue their national-security mission more effectively and efficiently. The United States has long been a leader in technological innovation,6 and the Intelligence Community7 (IC) has recognized the importance of leveraging American technological advantages.8 Calls for the IC to make better use of technology are not uncommon, nor are complaints about its failure to capitalize on the latest technological developments;9 this is particularly true following news of a major event that the IC did not anticipate.10 Such calls often raise concurrent concerns about the civil liberties and privacy implications of placing powerful new capabilities in the hands of intelligence operatives, where they might be used in potentially unanticipated ways, cloaked from public scrutiny by rules that protect "sources and methods" from disclosure.11

Intelligence officers and policy makers standing at the intersection of security and privacy can find themselves presented with a conundrum: how to make prudent technology choices? Moving in one direction seems imperative for accomplishing important national-security missions, yet raises red flags about potential impacts on privacy and civil liberties. Moving in another direction seems necessary to protect civil liberties, yet raises alarms about potentially dangerous security gaps. This dilemma calls up the image of Buridan's ass, caught between two competing and compelling considerations.12 It also brings to mind Yogi Berra's famous advice on encountering a fork in the road: when forced to choose between security and privacy, find ways to "take it" - to have it both ways.13 Through it all, intelligence agencies must remember this: protecting privacy and civil liberties is not optional. The question they face is not whether to provide such protections - agencies are obligated, by law and duty, to provide them. Rather, the question is how to provide them while accomplishing the intelligence mission.

I. The Broader Context

The paradoxical directive that the IC use technology more aggressively because of its potential to make agencies more effective at their missions (which includes, of course, "spying"), yet refrain from using technology because of its potential intrusiveness, is a recurring one. Concerns that authorities for "espionage" might be abused if not properly overseen, given the advent of new capabilities, find eloquent expression in Justice Louis Brandeis's dissent in a 1928 Supreme Court case. In discussing wiretapping and the invention of the telephone, Justice Brandeis warned:

Subtler and more far-reaching means of invading privacy have become available to the Government . …

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