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Alan M. Dershowitz | Part 2

Surveillance and privacy

Snowden case reveals a program with few checks and little accountability

Edel Rodriguez for The Boston Globe

The recent disclosure by Edward Snowden of the US government’s wide net of surveillance has stimulated an emotional debate about security, privacy, and secrecy. We have learned from Snowden that the National Security Agency engages in virtually unchecked monitoring of all sorts of communications that were thought to be private but that we now know are maintained in secret government databases.

Three fundamental issues are raised by these disclosures: Was it proper for the government to conduct such massive surveillance and to maintain such extensive files? Was it proper for the government to keep its surveillance program secret from the public? If not, did this governmental impropriety justify the unlawful disclosure of so much classified information by Snowden?

There are no simple or perfect answers to these questions. All governments, even those that respect the right to privacy, must engage in some surveillance. The nature and extent of permissible intrusion on privacy will always depend on the nature and extent of the threats posed and the value of the information sought in preventing these threats from materializing. A delicate balance must be always struck between security and privacy.


Consider, for example, video surveillance of public areas. Such surveillance helped authorities identify the alleged perpetrators of the Boston Marathon bombings and probably also helps to deter street crime, store thefts, and other threats to the public. And it does so with some, but fairly minimal, intrusions on our privacy, since surveillance cameras capture only our external movements in public places, and not our words or deeds in the privacy of our homes. It is not surprising therefore that few citizens object to this limited sort of public monitoring of our movements.

Contrast such benign intrusions with the far more massive ones revealed by Snowden. We don’t know precisely what sorts of information the NSA has gathered and from whom. (This lack of knowledge in itself is part of the problem.) But we know enough to be concerned that our phone calls, e-mails, and even oral conversations may be subject to governmental monitoring and collecting. The government denies that it is listening to or reading the content of private communications between ordinary citizens, claiming that the NSA collects only the “metadata,” specifically the identifying features of the persons who are communicating; the times, durations, and locations of such communications; and other “externalities.” The massiveness of such a collection process tells the government a great deal about the substance of terrorist plans. But it also tells the government a great deal about the substance of our private lives. That is why there is so much controversy about a program that gathers so much with so few checks and so little accountability.


The real question in a democracy is not whether a balance must be struck — of course it must — but who should get to strike that balance. Which brings up the secrecy issue. If the governmental programs of gathering information are kept secret from the public and from most of its elected officials, then the balance will be struck, if it is struck at all, by intelligence officials who have a far greater interest in security than in privacy.

There is an inherent relationship therefore between governmental intrusion and governmental secrecy.

Of course there are “necessary secrets,” like the names of spies, the movement of troops, the contents of codes, the location of satellites, and the nature of secret weapons. But there are also unnecessary secrets, like old information that remains classified by bureaucratic inertia or current information that is kept secret to avoid embarrassing government officials. The most controversial genre are secrets whose disclosure would, in the reasonable views of the government, endanger national security, but whose disclosure, in the equally reasonable view of the press, might ultimately serve the national interest. The surveillance program conducted by the NSA falls into this category.


Surely the government is entitled to keep secret the technical aspects of our surveillance programs that give us a competitive advantage over our adversaries, and whose disclosure might provide terrorists with information useful to circumvent our legitimate efforts to keep track of their nefarious plans. But no democratic government should be empowered to conduct the kind of massive surveillance disclosed by Snowden without some check and balance against excesses, or misuses. And checks and balances cannot be effective without some disclosure.

The other difficult issue is not whether, but when to publish secrets. In a democracy, there should be no permanent secrets, since history and accountability are paramount. The public must ultimately know everything its government has done in its name. But it is sometimes necessary to postpone publication until an immediate danger has passed, since in the modern world, there is no way of disclosing secrets to friends without also disclosing them to foes.

In the end, there will always be some cases of real and intractable conflict between security and secrecy. Our Constitution purports to resolve doubts in favor of the right to know, but there are cases where even that presumption will not resolve the problem: where the authentic claims of national security will seem to outweigh the powerful presumption in favor of contemporaneous disclosure and accountability.


That is why Congress made it a crime for Snowden to take it upon himself to decide which secrets to reveal to our adversaries, including terrorists who are seeking to do us harm. Just as the intelligence community should not alone be empowered to strike the balance among security, privacy and secrecy, so too — in a democracy — no individual whistleblower should be allowed to decide by himself what to disclose.

Our Constitution, with its unique system of checks and balances, grants this power and responsibility to a combination of executive, legislative, and judicial authority — monitored by a free and independent press. It is an imperfect solution, but like democracy itself, it is better than its alternatives.

Alan M. Dershowitz is a professor emeritus at Harvard Law School. His newest e-book, “Terror Tunnels: The Case For Israel’s Just War Against Hamas,’’ has just been published.