2009 and Beyond

Restoring the Balance between Security and Liberty

Privacy, one of our most fundamental rights, has been dramatically eroded in recent years as a result of the combined effect of technology changes and policy failures. Increasingly, Americans use the Internet and other digital services to access, transfer and store vast amounts of private data. Financial statements, medical records, travel itineraries, and photos of our families -- once kept on paper and secure in a home or office -- are now stored on networks. Electronic mail, online reading habits, business transactions, Web surfing and cell phone location data can reveal our activities, preferences and associations. At the same time, advances in technology have given the government new surveillance and data analysis capabilities. Our lives are increasingly conducted online, more and more personal information is transmitted and stored electronically, and the government's ability to harvest, sort through, and act upon that information has increased dramatically.

However, privacy protections against unwarranted government surveillance, collection and use of personal data have failed to keep pace. Information generated by digital services is accessible to the government under weak standards based on outdated Supreme Court decisions and laws. Indeed, the major federal law on electronic communications was written in 1986, before the World Wide Web even existed.

In the wake of the 9/11 attacks, laws and policies have been adopted that unnecessarily weaken privacy rights and other constitutional liberties. The government has adopted data mining techniques, expanded electronic surveillance, and launched new identification programs without adequate safeguards for the rights of Americans. These and other programs have often been adopted before careful assessment of whether they are even likely to be effective.

Security and liberty are not mutually exclusive. The laws and investigative tools needed to protect American lives can, and must, include privacy and due process protections. Such checks and balances not only preserve liberty, but also help enhance security by ensuring that the government is focusing its limited resources on real threats and effective measures.

In order to restore the balance between security and liberty, President Obama and Congress should take specific steps, including the following:

• President Obama and Congress should ensure that foreign intelligence surveillance is conducted only in full compliance with the Foreign Intelligence Surveillance Act and with appropriate checks and balances to prevent abuse.
• President Obama should curtail the use of National Security Letters, and the next Congress should adopt legislation to ensure that NSLs are limited in scope and, in cases seeking sensitive records, issued with judicial approval.
• President Obama and Congress should work together to enact legislation to update communications privacy laws to account for dramatic advances in technology.
• The President and Congress should adopt a balanced framework for information sharing and analysis for counterterrorism purposes.
• President Obama and Congress should revisit the REAL ID Act and ensure that all governmental identification programs are necessary and effective and subject to adequate privacy and security protections.
• President Obama and Congress should work together to update the Privacy Act; the President should assiduously enforce the Act's protections.