Ron Miller: After Snowden, what kind of country does America want to be?

The really important question right now isn't what to do about Edward Snowden; it's how much surveillance is tolerable in a free society

On New Year's Day, The New York Times finally caught up with my assertion that we should forgive Edward Snowden and let him come home, because in the end he did us a service by letting us know what was going on behind the scenes at the National Security Agency. Good for the Times, but I've been thinking that it's actually time to move beyond Snowden and get to the heart of the matter.

Now that the genie is out of the bottle, what the heck are we going to do about it?

Whether Snowden is a hero or a villain really doesn't much matter anymore. Yes, we like to personalize these things, but whether Snowden is a good guy or a bad guy isn't the big question right now. It's not the act of revelation that really matters; it's what was revealed. The fact is he released a bunch of documents to the press that showed what most of us consider a shocking level of surveillance on ordinary U.S. citizens, world leaders and other people around the world.

The NSA wasn't just collecting data on suspected terrorists. It was apparently collecting just about anything it could get its hands on. And now we have to decide just how much surveillance is tolerable in a free society.

I don't think many people, even those who think Snowden should be tried for treason, believe that we should be like the old East German state, where surveillance was so pervasive that no one could trust anyone else, not even their own neighbors. That state rotted from the inside for a lot of reasons, including its own paranoia.

But what do we want to be?

I hear lots of people talking about the rule of law, and that seems a good place to start. The U.S. Constitution outlines all of our rights as U.S. citizens -- subject to interpretation by the courts, of course. It includes a right to privacy, a recognition of the fact that we are innocent until proven guilty, and a right against unreasonable search and seizure.

And what has the Snowden affair shown us about the state of those rights? I would suggest that it has shown that the government is invading our privacy on a regular basis and is assuming the guilt of any citizen who accesses the Internet. How else can it justify harvesting as much data as its computer systems can process? And it appears to be seizing all of our data on a regular basis, which by any measure has to be considered unreasonable.

The problem is that the FISA court, which was set up as a safe forum for officials to make requests for surveillance without letting the parties involved know, seems to be a rubber stamp giving officials cover for their actions, rather than the sort of true oversight authority the courts are supposed to be. Before any surveillance is conducted on U.S. citizens, a plausible argument must be made that the information is being used to prove criminal activity or prevent a serious incident from happening.

The Obama administration is reportedly working on some reforms, based on the recommendations of an independent review panel. Though it's unclear how much weight the administration is giving those recommendations, the review is a chance to determine just how much spying on ordinary citizens we are going to allow in our country.

I think bad actors can be stopped without compromising our principles. We've done it many times. In the battle against organized crime, the FBI had to get court orders for wiretaps as it gathered evidence. In many cases it went undercover. Law enforcement got the job done while honoring the rights granted in the Constitution.

Yes, terrorists operate in the shadows, but even they have to come into the light to undertake certain activities. They need to finance their operations. They need training. They need places to live. We want law enforcement to be able to observe them whenever they step into the light. That might mean listening to their calls and monitoring their email. But those things can be done without catching all of the citizenry up in the surveillance net -- or even a significant portion of the citizenry. Law enforcement has to be listening to the right people, but listening to everyone just makes it harder to catch the really critical information.

Just last week in The Wall Street Journal, a former NSA employee suggested that the agency is so awash in data, it can't possibly understand what it has -- which implies that its data collection policies could actually be undermining its mission.

This also indicates that sweeping up information doesn't make us safer. It just erodes our democratic principles in the name of making us safer.

Certainly there are bad people in the world who want to do harm to the U.S. and its allies. That's a given. 9/11 is a historical fact. But wouldn't the agencies charged with protecting our safety be better off targeting their surveillance resources much more intelligently, rather than simply sucking in as much information as they can and telling us that makes us safer?

This is the conversation we need to be having now. The time to debate the merits of Edward Snowden's activities has passed. It's yesterday's news. Today we need to take action based on what we now know and decide just what kind of country we want to be.

Ron Miller is a freelance technology journalist and blogger. He is an editor at FierceContentManagement and a contributing editor at EContent Magazine.

Read more about privacy in Computerworld's Privacy Topic Center.

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