Cybersurveillance in a Free Society

When Edward Snowden stole and released thousands of National Security Agency (NSA) documents,1 he exposed a massive secret governmental cybersurveillance operation.2 Although U.S. citizens might have anticipated that the U.S. government was collecting information about terrorists and criminals, few could have imagined the all-encompassing nature of the NSA surveillance program.3 With a budget of $10.8 billion per year4 and 35,000 employees,5 the NSA was systematically collecting data about virtually everyone and everything, amassing millions of cell phone call records, e-mails, text messages, credit-card-purchase records, and information from social media networks.6 In addition, the NSA created a system that enabled it to easily access Yahoo and Google accounts.7 The end result was that the NSA intercepted some 182 million communication records, including "to" and "from" e-mail information, as well as text, audio, and video information.8The cybersurveillance program was shrouded in secrecy in that U.S. governmental officials were neither open nor truthful regarding the size and scope of the NSA program. For example, President Obama assured the U.S. public that the NSA was not targeting ordinary U.S. citizens, but rather was focused only on communications from individuals who posed a terrorist threat to the United States (for example, communications of "foreign intelligence value"9 and foreign intelligence targets).10 The President also boldly proclaimed, "Nobody is listening to your telephone calls."11 Likewise, the NSA declared that it was not storing private online or phone information except under limited circumstances: when it believed that the recording or transcript contained "foreign intelligence information," evidence of a possible crime, a "threat of serious harm to life or property," or could shed "light on technical issues like encryption or vulnerability to cyber attacks."12 However, it soon became clear that the NSA had established a huge data storage center (taking advantage of the declining cost of data storage and advances in search software)13 and was routinely collecting extraordinarily large amounts of information regarding virtually everyone.14 As a result, even if Americans were not the intended targets of NSA eavesdropping, they routinely fell "into the agency's global net."15The NSA surveillance program raises fundamental questions regarding the relationship between the U.S. government and the U.S. citizenry. Undoubtedly, government has a legitimate interest in investigating and collecting information regarding suspected terrorists. Government also has a legitimate interest in shielding certain types of information (for example, state secrets or vital information that is potentially damaging to national security or foreign relations) from public disclosure.16 However, the question is one of balance. In a democratic society, legitimate questions might be raised regarding whether the government should be involved in such broad-based surveillance, and whether it should be conducting such operations in secret without democratic accountability.I. The Founding Generation's Skepticism of Government: "Separation of Powers" and "Checks and Balances"The NSA cybersurveillance program raises a host of troubling issues for U.S. citizens. Although the Framers of the U.S. Constitution embraced (to a greater or lesser extent) democratic principles, they remained highly distrustful of a powerful government-even a democratically elected one.17 Illustrative were the views of Thomas Paine, who argued, "Society in every state is a blessing, but government even in its best state is but a necessary evil; in its worst state an intolerable one."18This distrust was probably rooted in a variety of considerations. First, the American Revolution was precipitated by grievances against the British government, and in particular alleged abuses by the British monarch.19 Indeed, the U.S. Declaration of Independence details a long list of purported grievances against, and alleged abuses by, the British King. …