theatlantic | So we return to recent revelations that the Drug Enforcement
Administration has spent many years engaged in the bulk collection of
both phone records and license plate data.
These news stories have been discussed on successive episodes of
Baker's podcast, where he makes clear his position that these tactics
shouldn't be considered a violation of the Fourth Amendment. Unlike
Supreme Court Justice Sonya Sotomayor, who has expressed discomfort with
prevailing executive branch logic, Baker believes that civil liberties
ought to be safeguarded by limiting how metadata in the government's
hands can be used, not what can be collected, and that even a nationwide
system of cameras that snap photos of license plates to track the
movement of cars isn't a violation of Constitutional privacy rights since everyone puts their license plate on their bumper for anyone to see.
Baker also recognizes that even if these practices are
constitutional, that doesn't resolve the separate questions of 1)
whether they are prudent policy, and 2) whether it was appropriate for
the DEA to implement them in secret. That's where I want to focus. On
Baker's podcast, Rebecca Richards, the Director of Privacy and Civil
Liberties at the NSA, discussed that surveillance agency's need to
maintain some secrecy even as it offers the American public an undefined
degree of transparency.
In that context, Baker said, "My faith in transparency is shaken by
these DEA stories. They hid this not even classified—this was law
enforcement sensitive—program, they kept it hidden for 25 years, it was a
mass collection of data in support of a legal regime that is deeply
controversial. Colorado has opted out of the regime. And the reaction,
unlike the reaction to NSA, has been, 'Oh yeah, cops do that.'"
That aside struck me so powerfully.
Out of nowhere, Baker adeptly summed up why the DEA's behavior was
objectionable: In a country meant to be governed by the people, it hid a
program with huge privacy implications, knowing full well that it would
be deeply controversial, despite the fact that it wasn't classified or
vital to national security. That was objectionable, even if one thinks the program was legal and effective.
As noted, Baker went a bit farther. For him, the very value of
transparency got called into question when no outcry was sparked even by
a program with all those strikes against it.
While I agree that these revelations about the DEA made barely a blip
in the news, and that they ought to have sparked a bigger outcry,
objections have been raised. Last month, I wrote
that the DEA's behavior was "an affront to self-government." The
American Civil Liberties Union said, "It’s unconscionable that
technology with such far-reaching potential would be deployed in such
secrecy. People might disagree about exactly how we should use such
powerful surveillance technologies, but it should be democratically
decided, it shouldn’t be done in secret.’’
