By Any Means Necessary

Since the origin of the United States (U.S.), the nation struggled with issues concerning security, privacy, and civil liberties. This uncertainty contributes to the U.S. government’s inconsistent approach towards privacy and security.  U.S. history reveals a number of egregious examples where the interpretation and application of these concepts, particularly during times of war or domestic unrest, resulted in the erosion of privacy or violation of other civil liberties.

Yet government entities from federal to local levels continue to increase capabilities and applications supporting law enforcement and domestic security, including leveraging Intelligence Community (IC) capabilities and innovative technologies.  Many have argued that these capabilities are too intrusive and infringe on constitutional rights and privacy. Some believe that the government programs go too far, encroaching on privacy in pursuit of domestic security. The government argues “that their programs are constitutional and subject to rigorous congressional and judicial oversight… [s]ecrecy, they say, is essential to meet their overriding aim of protecting the public…” Still others note that it is the same government that struggles to develop policy to address the privacy challenges in the aftermath. The uncertainty is reflected in the struggle to develop policy and has its basis in early American history.

The ambivalence regarding privacy and security can be traced back to the arrival of the “first religious refugees in the early 17^th century,” the Puritans, in New England.  These early European settlers had barely established their first colonial township before their idea of religious freedom was shattered by the placement of “severe restraints on religious faith and practice.” Interestingly enough, it was this perceived threat to privacy, that resulted in an early example of government intervention when, John Winthrop the first governor of the colony, had to extrapolate the concept of liberty.

All of this contributed to “a uniquely American view of power and liberty as natural enemies… [a]s such “the nation’s founders believed that containing the government’s power and protecting liberty was their most important task, and declared a new purpose for government: the protection of individual rights.”  These “unalienable rights, including the right to privacy,” could not be taken away even by a democratically elected government.

In addition to protecting individual rights however, the founding fathers also conveyed additional fundamental roles to the government including protecting its citizens from external invaders and keeping the peace within the nation.  These two roles are codified in preamble of the U.S. Constitution but today they are often vaguely deduced to the moniker national security.

“National security is the safekeeping of the nation as a whole…[i]ts highest order of business is the protection of the nation and its people from attack and other external dangers by maintaining armed forces and guarding state secrets.” Using this definition few would argue the federal government’s role in national security, specifically to protect the nation and its citizens from foreign invaders by providing for the common defense.

With these two purposes defined I framed my research with a number of questions in mind including, what happens when the government’s responsibilities to provide privacy and security collide?  What happens, when the means that the government applies to achieve one, encroaches on the other?  Do privacy and civil liberties always trump the government’s need to provide security, or should national security and law enforcement needs always be prioritized over privacy and related civil liberties? Notwithstanding the rule of law, who should be the chief arbiter when questions regarding the primacy of security or privacy are raised, and how will the nation discern which is the better right?

This paper will explore the Intelligence Community’s (IC) support to domestic security and will examine the impact of this support on privacy and civil liberties. Specifically, the author will examine the origins and evolution of privacy concepts in the United States, review historical examples where privacy collided with national security, appraise IC and law enforcement cooperation, iterate advances in technology that have privacy implications, survey current U.S. government intelligence oversight procedures, and offer a thought experiment to develop recommendations for consideration by U.S. policy-makers.

The author recognizes that law enforcement and IC activities and relationships span from extraterritorial to domestic efforts, and as such will focus this paper, albeit not exclusively, on the range of activities that impact U.S. citizens, or as defined by the IC, US Persons.