Take Five With Susan Freiwald

Susan Freiwald

The U.S. government is listening to your phone calls and reading your email.

Five questions with USF Law Professor Susan Freiwald on what this means for your privacy. She discusses the secret surveillance program first exposed in classified documents leaked by former National Security Agency contractor Edward Snowden. He is now charged with espionage.Freiwald is an expert on privacy and electronic surveillance law and is frequently quoted in the media. 

1. It’s unsettling to learn that our government is spying on us. How extensive is the surveillance?

The scope of information that is being captured and stored is fairly mind blowing. The U.S. government has access to the fiber optic cables that carry information across the world as well as the networks of Google, Yahoo!, Facebook, Skype, and more. The government has apparently accessed our emails and telephone calls, video and voice chats, online pictures, and online browsing histories.

The NSA has admitted to collecting information on every telephone call coming into, going out of, and made within the U.S. beginning in 2004 and continuing up to today. The collected information includes who made the calls to whom, when they were made, how long the calls lasted, and each phones’ unique subscriber identification information. The same type of information was collected for all Internet communications from 2004 until 2011.

The NSA claims that the actual contents of the communications were not collected. There is much more we don’t know and that the government has refused to provide details on, such as what else has been collected and stored.

2. Is this surveillance illegal?

I believe the Federal Bureau of Investigations and NSA have violated privacy laws and Americans’ constitutional rights to speak and associate freely (First Amendment), and our right to be free from unreasonable searches and seizures (Fourth Amendment).

The U.S. intelligence community rightfully collects information on those it believes have some association to terrorism. But it also collects information on all of those suspects’ contacts and all of the suspects’ contacts’ contacts, using an approach called “three hops” out. That amounts to millions of innocent people’s information being swept up illegally in a government dragnet. It’s wrong for the government to have this much information and to be storing it indefinitely.

3. Don’t we need government surveillance to stop terrorist attacks? I think every American agrees the government needs to do whatever it can to combat terrorism. But when the government uses surveillance powers that our courts have long recognized and history has shown are subject to abuse, they need to make a case that it is effective and worth the cost. It hasn’t done that for the programs we are now learning about. The terrorism rationale can’t be a blank check to collect any and all information.

The government should be using surveillance in a targeted way to focus on individuals who it has ample reason to suspect are engaged in terrorist activities, not to vacuum up the information of millions of people.

4. Is the data that’s collected safe?

I worry a lot about the security of the data. When a government has this much data about people, there is a great risk that it can be misused by hackers or by people interested in consolidating power. Once you know people’s private secrets you can use them to silence your critics, harass those you disagree with, and expose journalists’ sources. It’s anathema to democracy.

I think the Snowden revelations show that the information is not secure. Since Sept. 11, 2001, tens of thousand of contractors have been hired and 1.4 million people now have top-secret security clearance; many of these contractors’ security background checks were done by other contractors. There is every opportunity for abuse.

5. The government says Snowden’s leaks severely damaged American intelligence interests. Do you see an upside?

Yes. Snowden’s leaked documents are exceptionally valuable because they have provided irrefutable proof of potentially illegal programs that we suspected existed and had heard rumors of. The leaked documents led the executive branch to provide more information, they spurred the legislative branch and oversight groups to hold hearings, and they sparked a much-needed public conversation that I hope will lead to meaningful reforms.

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