Best Argument: Yes
Audience Favored: No (81%)
How do you protect everyone?
David Gewirtz: What do you do? When you lead a democracy, you have two fundamental missions: ensure the freedom of your citizens and keep them safe. The great challenge of democracy is these two responsibilities are often at odds with each other, and yet neither can be sacrificed and both missions must be fulfilled.
But there are bad guys -- nation states dedicated to our destruction for their benefit, terrorists who kill thousands of innocents. These bad actors love our freedoms as much as we do, because it lets them travel through our open society and wreak havoc.
To protect your citizens, you keep an eye out for trouble. With hundreds of millions of citizens and millions of square miles, you must automate the process. You must look for indicators. You must aggregate tons of data. Because discovering a plot must happen before thousands of people die.
So here's the question my opponent must answer: If you don't watch your citizens, if you don't keep an eye out for people who are willing to kill thousands of your neighbors, how do you protect everyone? What do you do? What do you do?
Threat to democracy
Violet Blue: Domestic spying and surveillance is antithetical to democracy; while some say it's necessary for safety, it destroys the fundamental trust between a government and its citizens, which is key to democracy itself. We may be "safer" - and, are we? - but we will no longer be in a democracy. If you trade trust for safety, can you be sure the government is here to protect every one of us? I don't think so.
Great Debate Moderator
Are our debaters standing by?
We plan to start promptly at 11am ET.
Welcome, readers: At 11am ET, this page shouldbegin to refresh automatically each time a new question or answer is posted.
This should be very interesting.
I look forward to your questions...
Great Debate Moderator
OK, first question:
Many have suspected for years that our governments -- domestic and foreign -- are conducting surveillance at home and abroad. But now that we know -- definitively -- that this is happening, does it matter? Do you think publicly disclosing that "we spy on you" harms governmental spying efforts?
Anything that reduces the fog of war for our enemies enables them.
That said, one would have to assume that our enemies already expected (and factored into their strategies) that U.S. intelligence agencies were actively conducting surveillance.
Secrecy is one of many tools in the law enforcement toolbox. Just as a police detective on the trail of a killer wouldn't want to release certain information to the public so as not to tip off his target, so too intelligence agencies prefer to keep the trail from being unnecessarily muddied.
These recent releases did not help American or British citizens. They simply made our enemies' jobs a little easier. Of course, that just means we'll have to work harder to keep citizens safe.
Will America ever be trusted now?
This will be a stain in history the US government will never be able to erase. The domestic surveillance revelations have called into question every relationship of power and trust the American government has, from its allies and enemies abroad to the people here at home. Some may wonder if it matters to the average Jane, but it does - sitting in the doctor's office last week I watched two strangers ask each other what they thought of Edward Snowden, why he would give up his life like that. The average American feels powerless, but it matters on an emotional level - the NSA's domestic surveillance is antithetical to American core values of privacy and private property. Global citizens who have survived horrifying - and creepingly similar - surveillance states during wartime (such as WWII Germany) will remember that there are things in history that should never be repeated, and these giant steps in that direction may be doing irreparable harm to diplomatic relations. Will America ever be trusted now?
This is governmental spying gone out of control. And by going out of control, the revelations that the NSA has been undermining the legal system that is supposed to keep it in check, the NSA has screwed itself out of having a leg to stand on to defend the need for surveillance in true edge cases.
The revelations were on their way out before Snowden dropped the docs. One only needs to look at what was unraveling two weeks prior with Attorney General Eric Holder and the AP/FOX News dragnet surveillance on journalists - the US government was realizing it couldn't plug its leaks fast enough. So did it harm spying efforts? Only as much as the illegal methods were already harming the very institution that was trusted to practice lawful procedures.
Great Debate Moderator
The greater risk?
"When the people fear their government, there is tyranny; when the government fears the people, there is liberty."
Do you believe that the risk of being wrongly convicted at home under your own government's domestic spying program outweighs the potential of a rare attack by a terrorist or foreign government?
Necessary to prevent attacks
You're jumping a few pieces forward on the chess board without the intervening moves. Domestic surveillance of aggregate data (let's not call it spying, because that's not really what's happening) has proven to be necessary to prevent attacks.
The issue of wrongful conviction actually follows wrongful arrest and prosecution. Digital analysis is far from the only thing that could cause law enforcement to make a wrongful arrest. While terrible, this practice has existed in certain unfortunate cases throughout history.
A greater concern is whether or not future leaders will choose to expand the net to issues outside of terrorism or conflate other practices (such as, say, cannabis use) as supportive of terrorism. A more totalitarian regime might choose to round up all the bloggers and journalists, for example, to keep better control over messaging.
In democracies, our only defense against such totalitarianism has been our vote and our voice. So far, it's worked pretty well, or we wouldn't be free and having this Great Debate.
This is a false dilemma
Incorrectly - or worse, illegally - surveilling and prosecuting citizens at home does not serve as a preventative against domestic terrorism or foreign attacks. The president has invoked a theory of limitless power to disregard the mandates of Congress.
Great Debate Moderator
When is surveillance OK?
In President Obama's words, the National Security Agency's (NSA) surveillance programs are vital in "protecting our nation from the threats of a terrorist attack." Should surveillance be focused entirely on terrorism, or should it apply to other areas of crime?
Distinct entities with very separate missions
While domestic law enforcement often teams up with the national security apparatus to prevent terrorist actions, they are distinct entities with very separate missions.
Surveillance (and, specifically wire-line interception) has been used as part of law enforcement for nearly a hundred years. We have a deep and complex set of laws that govern traditional law enforcement that have worked, in the main, quite well.
Of issue, really, is a discussion of national security surveillance that throws a very wide net as part of a terrorist act prevention program. To find the one or two poison needles in a haystack of 300 million people requires these large aggregate scans.
The concern here is whether or not these so-called national security scans, which run with a different level of oversight than law enforcement surveillance, will eventually be co-opted for purposes outside the national security realm, in part because they're often more expedient than the more cumbersome surveillance rules we have for criminal investigation.
That is a valid concern and it's why oversight and leadership is so important.
You can't trade trust for safety
Unfortunately, President Obama is now endorsing a secret court system that has violated the trust of the people it is supposed to be serving and protecting - a legal system it was trusted to uphold. You can't trade trust for safety, it just doesn't work.
In 2005, the administration admitted to the New York Times that its spying had gone beyond the surveillance of terrorists and did not comply with the Foreign Intelligence Surveillance Act (FISA) - this was confirmed by senior Bush Administration officials. No one is questioning the surveillance of Al Qadea - the NSA is spying on millions of Americans. In "Spy Agency Data After Sept. 11 Led F.B.I. to Dead Ends" (NYT 2005) we found out that this wholesale surveillance turned up nothing more that dead ends, innocent Americans - and wasted counter-terrorism resources.
Great Debate Moderator
Several tech companies were implicated in the PRISM scandal. Do you believe there was an element of
complicity? Do you believe that consumer confidence in these companies has been shaken?
Good corporate citizens
The use of the phrase "PRISM scandal" is pretty loaded and needs to be addressed. A trusted employee stole national security secrets, co-opted a foreign publication to publish classified information, and then ran away to China and then Russia seeking asylum. That's traitorous activity.
As for this so-called PRISM thing, the classified methods by which our government attempts to protect its citizens is not a scandal. Stealing and then releasing that classified information to foreign press is a crime and it puts not only all Americans at risk, but citizens of other free nations.
Let's now move on to the question of America's greatest technology companies. These companies are law-abiding. The law, from time-to-time, requires certain actions on their part. That's not "complicity". That's doing their job and being good corporate citizens.
When it comes to the vast tracts of American consumers, consumer confidence hasn't been shaken. Most people will still buy from Apple, still let Google scan their email for ads, still do whatever they do on Facebook, and so forth.
However, some foreign leaders are trying to make hay out of these unfortunate events. They are trying to sow seeds of mistrust and FUD (fear, uncertainty, and doubt) for the benefit of their nations’ companies. The sad part is that they, too, participate in their own national security activities so all they're really doing is trying to capitalize on the actions of one traitor. It's shameful.
Remains to be seen
That's the big question - will anyone ever be able to trust the "Prism Nine" again? I think the answer is no: the trust and confidence in these companies has been absolutely damaged.
Whether it was damaged by the companies' actions, or by their government's actions - this remains to be seen, but I think it's yes and no. I think that the answer to the complicity question is yes and no: I think we'll find out that some will be considered absolutely complicit. And others will be seen as caught in a set of rules and laws where, even if they wanted to refuse the US government, they were not able to. Others, like Twitter, have been able to refuse complying with Prism. Meanwhile it was reported last month in Secret Court Ruling Put Tech Companies in Data Bind (NYT June 2013) that Yahoo was forced to join Prism.
But insofar as data transparency goes, I don't think anyone's hands are clean.
Great Debate Moderator
Who is to blame: Politicians or NSA?
At the heart of democracies are elected representatives who draft laws and regulations that govern administrations and citizens alike. U.S. lawmakers drafted and ratified the laws that govern domestic and foreign spying program. The NSA's interpretation of those laws has come under criticism for going above and beyond what was expected of it. Who is to blame: the politicians for drafting poorly defined legislation, or the spying agency or bending the rules?
You can't ever go wrong blaming our politicians.
Once again, though, you're making very leading statements. "Who is to blame" implies that you're intrinsically siding with the position of my opponent. I contend that untold thousands of lives have been saved since 9/11 because of hard-working federal agents fighting constant terrorist threats.
We shouldn't blame them. We should thank them.
Now, back to the politicians. Our politicians have added to the problem because they tend to draft idiotic legislation that attempts to strip the Constitution of its powers in the digital world. PIPA and SOPA were good examples of politicians sucking up to lobbyists and not putting the interests of America's future first.
Without a doubt, you can be assured that if there's a piece of legislation intended to govern the digital world, our politicians will do their best to screw it up.
Everyone here is guilty
I don't usually take this stance but the evidence seems overwhelming that everyone here is guilty until we are shown proof otherwise. The politicians are guilty for being asleep at the wheel - but worse, they are guilty of being flat-out ignorant about the technology, the world of tech and telecoms, the way their constituents are at risk from the technology, and for being completely computer and Internet illiterate.
Even if you disagree with what I just said about politicians, I'll argue even harder that the NSA and everyone overseeing the departments involved in the spying programs are to blame and must be held accountable - for all the damage done, to people, companies, our reputation and trust, and to individuals who have been targeted and have suffered wrongly.
They didn't bend the rules; they broke the rules into unusable pieces.
Great Debate Moderator
Do you believe that surveillance, on any level, lies at the core of the issue...
...or is the scope of the surveillance more problematic?
We take the issue of surveillance very seriously.
Once again, counselor, you're asking a leading question when you say "more problematic". That said, surveillance is always (and should always be) something of a sticky wicket.
Surveillance, by its very nature, is the act of intruding on someone's privacy. The Constitution has made privacy a sacred right, and we treasure that right as part of our core DNA. However, Americans are nothing if not a practical people. We recognize that there are times (few, hopefully) when privacy must be sacrificed for the greater good.
That's why we have an entire judicial infrastructure, where judges examine each case and make a determination of whether privacy or surveillance is more in the public interest. Search warrants and wiretap authorizations are not issued willy-nilly and have generally been used for productive criminal investigation for the protection of citizens.
Aggregate surveillance of the type being discussed regarding the NSA is a bit different because we're talking about drive-by metadata rather than intrusive surveillance governed by a search warrant or listening in to the content of conversations. Even so, this level of aggregate national security surveillance is also subject to judicial oversight and has been since it started.
We take the issue of surveillance very seriously. The judges on the FISA court know they have to walk a very careful line to protect citizens from unwanted intrusion, while at the same time protecting everyone from heinous and brutal attacks.
...because to understand the difference between lawful and unlawful surveillance is to understand context. Obviously the scope of this is beyond the pale problematic; don't forget that we're talking about AT&T and Verizon phone records, creating a dragnet that includes schoolteachers, judges, kids...
Look, wiretaps on terrorists are allowed under the law, but getting a warrant to spy on a journalist under the Espionage Act because they reported on a leak is a clear abuse of context. (See "Fox Reporter Investigated Under Espionage Act")
Also a big problem here is the mind-boggling waste of resources. Resources that could be focused on preventing real threats - not scooping up and saving the phone records of millions of innocent civilians.
Great Debate Moderator
Limits to surveillance?
Taking ordinary citizens -- civilians and non-governmental actors -- out of the equation, should the U.S. government limit its surveillance efforts on other governments?
The EU (and other countries) certainly think so...
...and it appears the NSA spying has once again gone too far and violated a convention, as well as laws in other countries. The European Union is readying to launch an investigation - actually, a series of 12 public hearings - into allegations about NSA bugging European embassies and missions, which violates a 1961 convention on diplomatic relations. Germany is furious over news that the NSA has allegedly been collecting metadata on half a billion phone calls and emails across the country (every month).
Great Debate Moderator
Nothing to hide?
Many have argued, "I have nothing to hide, so I don't care. They can rifle through my inbox and they won't find anything." Is this a valid argument? Doesn't everyone have something to hide, no matter how seemingly inconsequential or unimportant it may be to others?
Rock-solid right to privacy.
I certainly don't have anything to hide. In fact, I've pretty much shared everything out in the open here on the Internet. You all know about my weakness for coffee and chocolate, my favorite steak condiments, and my love of classic muscle cars with go-fast stripes and hood scoops.
Why? Do you have something to hide?
Okay, seriously, it's not a valid argument. Whether or not someone has a guilty pleasure (or something they really need to hide, like a sexual preference or a disease that could cause cruel discrimination), every American has a rock-solid right to privacy. Period.
On the few occasions when the needs of the many outweigh the needs of the few (or the one), an entire judicial system of checks and balances comes into play to be sure that impinging on that right of privacy is necessary, justified, and without alternative.
A dangerous fallacy
You're reminding us of Google ex-CEO Eric Schmidt who famously said in regard to user privacy, "If you have something that you don't want anyone to know, maybe you shouldn't be doing it in the first place."
The idea that people who are doing "nothing wrong" should also have nothing to hide or keep secret is a dangerous fallacy.
This purports the notions that only people who misbehave want privacy, that we could somehow create a society where no one will do bad or criminal acts if everything is out in the open. Except lots of people do horrible things in the open - and using their real names - all the time, and lots of lawful people really aren't okay with Google and Yahoo reading their email.
I also think you'd be hard-pressed to find a single person who would think it's okay for anyone to rifle through their inbox - especially a stranger with the authority to get them in trouble.
The very serious problem with this thinking is that privacy is only for bad people, rather than a basic human right, as it is seen in Europe. 'Doing nothing wrong' is an argument used by people who want to minimize and exploit privacy by making it into something that only filthy, bad people want. But this thinking falls apart the minute you add any kind of at-risk people into the equation - children, poor people, LGTBQ people, women, parents, minorities, your grandma… anyone who can be hurt by someone with power using information against them out of context.
Perhaps only privileged and powerful people like Schmidt can truly believe that people who have nothing to hide shouldn't worry about privacy; after all, when CNET published personal information about Schmidt it found via Google in its coverage of Schmidt's privacy statements, Schmidt had Google blacklist CNET for a year.
So we see that standing behind 'nothing to hide' or doing nothing wrong' in regard to privacy works well for people who can bend and change the rules.
When you villainize privacy, only villains will have privacy.
Great Debate Moderator
European law states that privacy is a "fundamental right" across the 28 member state bloc. Should this be a right inscribed in the U.S. constitution?
Yes, additional protections needed
The Fourth Amendment is actually far more nuanced than that, and yet protects Americans quite well. As we well know, despite the EU "fundamental right," many member states regularly violate their own dictates.
Here in the U.S., the Fourth Amendment not only clearly states, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," it also defines when and how warrants may be issued.
That said, as I discussed in , I do believe that, in our modern world, American citizens need additional protections and additional clarity.
...because the privacy provisions in the Bill of Rights have been so badly ignored and abused by the NSA and data dealers that we need fierce privacy rights and angry laws with sharp teeth ASAP. Has everyone forgotten that the Bill of Rights is all about privacy?
While there is no right to privacy protection in the Constitution, the Bill of Rights protects specific aspects of privacy - and the NSA/Obama Administration would do well to brush up on the rights they've trampled. Privacy of beliefs is in the 1st Amendment, home in the 3rd, person and unreasonable search is in the 4th, the 5th is privacy of personal information (against self-incrimination), and many believe the 9th to support all the privacy provisions.
But the problem we're facing right now is that the NSA surveillance is unconstitutional. So even if we could somehow strengthen another aspect of the constitution against the violations perpetrated by the US government's various surveillance programs, would it stop them from doing it again? It is not stopping them right now.
Great Debate Moderator
In democracies, freedom is a necessity. For freedom, safety and security must be guaranteed. If governments cannot detect threats -- even if it blanket spies on everyone and picks up a one-in-a-million viable threat -- can freedom, and therefore democracy, be preserved?
Democracy is worth it
That's the whole point of this discussion. It's a very challenging problem to balance these two competing issues. It's what makes democracy hard and somewhat messy.
But it is so worth it.
No. Citizens under government surveillance are not free.
Back to the point in my opening argument: trust is the glue that holds democracy together. Dragnet surveillance - especially when it behaves "above the law" - destroys the fundamental trust between a government and its citizens. Trading trust for safety is another fallacious argument; if you can't trust the government to follow its own laws, to not exceed its reach, to not abuse its power (like strong-arming companies into complying with Prism) - then how can citizens be sure the country will protect them? They can't, period. By destroying my essential trust, you've destroyed my faith that you are here to protect me. And I'm sorry, but that makes me feel far less safe.
Can we even be certain they're technically competent or nimble enough to find that one in a million and act on it in time? The US Government has been shown to be- it should be strengthening its castle (which holds our data!) before turning its kingdom into a free-for-all surveillance state.
I think that the NSA's domestic spying is not "by the people, for the people." Period.
Great Debate Moderator
Thank you David and Violet for a fine debate!
And thank you readers for joining us. Please check back tomorrow for our debaters' closing arguments, and Thursday for my final verdict.
Pragmatism vs idealism
Choices made while running a nation (or running a company, for that matter) must often be far more pragmatic than idealistic.
This becomes most apparent when dealing with other nation states and enemy actors. While we would prefer they all stick to the same uplifting and honorable script we live by, they are willing to break the rules, go outside the law, violate basic tenants of human decency, and kill innocent people.
All modern nations are faced with this balance between civilized behavior and barbarous enemies. To maintain our civilization (and our civility), we must stand up to those who would harm our people and destroy our way of life.
The challenge is greater here in America, because we are a free society. Enemy actors are as free to move from city-to-city and state-to-state as our citizens. They are free to use our networks, our infrastructure, and even the brilliance of our most innovative companies.
They are so free to use our freedoms that they do their best to use our freedoms against us.
We have a choice. We can let it happen and people will die. We can restrict our citizens' freedoms, locking them down like in an old Soviet-style gulag. Or, we can keep watch. We can observe. We can use the network originally created to route around a nuclear war to protect our citizens from those who would do them harm.
Aggregate surveillance isn't spying. Aggregate surveillance is safety, protection, and a warning to our enemies. We are strong and if you try to hurt us, we will find you. We are free, but you are not free to harm our people.
A threat to democracy
The fundamental trust between a government and its citizens is key to democracy itself. Domestic spying and surveillance is antithetical to democracy; citizens under domestic surveillance are not free. Saying that our domestic spying program is necessary for safety is a false dilemma. Dragnet surveillance - especially when it behaves "above the law" - destroys the fundamental trust between a government and its citizens. If you trade trust for safety, can you be sure the government is here to protect every one of us? I don't think so.
The domestic surveillance revelations have called into question every relationship of power and trust the American government has - even the European Union is readying to launch a series of 12 public hearings into NSA spying, which violates a 1961 convention on diplomatic relations. The NSA is wasting resources that could be focused on preventing real threats - not scooping up and saving the phone records of millions of innocent civilians.
What has been allowed to happen behind closed doors with NSA spying is a threat to democracy.
The NSA's domestic spying is not "by the people, for the people."
Surveillance not ideal, but it does help keep us safe
"It has been said that democracy is the worst form of government except all the others that have been tried," British Prime Minister Winston Churchill once said.
And he was right. And his words have shaped how I landed on my decision in this debate. This one has been tough, and I want to take a longer-than-expected closer to explain my decision.
The surveillance conducted by the U.S. government, which this debate revolved around, has yet to be proven illegal by the judiciary. I disagree with Violet Blue on this point. That said, the spirit in which these laws were first ratified has surely been put to test.
I also strongly disagree with David Gewirtz' statement that he or anyone else for that matter has "anything to hide." To me, that's an immature, naïve attitude to take. Everyone has something to hide. We all know that. In reading this very statement, you -- the reader -- immediately thought of "that thing" you would never want anyone to find out. Whether illegal or illicit, morally repugnant or mindlessly insignificant, it makes little difference for the personal value it has to us each respectively. For that, he weakened his argument significantly and gave Blue the edge.
Self state-sanctioned actions are democratically dangerous. They're sketchy in terms of international legality -- most international law doesn't even exist yet -- even if at home they have been authorized in some way, shape or form by lawmakers and elected officials. Laws such as the Patriot Act and FISA allow widespread spying and surveillance on foreign nationals and U.S. citizens alike. Laws like the NDAA allow drone strikes on foreign enemies in third-countries, with or without the permission from those states. The latter puts the U.S. in the league of Russia and Israel, which all but openly admit to assassinating enemies on foreign soil.
These self 'rubber-stamped' actions are directly comparable to the actions of our enemies, albeit often in a more technologically advanced and targeted way. But, above all else, morality and legality, the first role of government is to keep its citizens safe.
And surveillance, when done properly and secretly, is an invasive but unknown force for protecting a state or a nation -- whether we like it or not.
Sometimes governments have to get their hands dirty. Not all, but some. Some remain in the terrorism spotlight and have a prominent presence on the world stage. Norway and Finland, not so much, more so the U.K. and the U.S., along with other allied nations that have fought in coalition during recent Middle Eastern conflicts.
Surveillance is not ideal, but it does help keep us safe because if it prevents just one attack out of a hundred, by definition it works. For every one successful "terrorist" attack (define this as you will, there are dozens of definitions in use) there are a hundred that are prevented. On the whole, modern democracies have to carefully strike this balance and open themselves up to open scrutiny -- something both debaters agreed on.
But in democracy we have freedoms, too. A balance is struck, and when that balance eases on one side over another, the judiciary aims to balance it out again. And as long as government is monitored itself by the press, the politicians and the people, it can prevent a slip that could shift a democracy to a totalitarian regime.
Despite Gewirtz's occasional tone -- thanks for that, by the way -- I'm going with our resident government blogger on this occasion. It was a fine debate, and I personally thank the two sincerely for this. Blue made some excellent points and personally, I agree with her. But I think in hindsight, despite my personal and moral objection to it, Gewirtz won the debate question the moment he chose that side.