it's not merely a civic responsibility to speak out against waste, fraud, and abuse!!!

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.’’