Peter Swire served as the chief counselor for privacy in the Clinton administration from 1999 to 2001. He is currently a law professor at Ohio State University. This is the edited transcript of an interview conducted on Jan. 17, 2007.
… It would help us as we look at the situation today to take a few moments and sort of understand some history. ... What is the nature of the relationship between the telephone companies, particularly AT&T, and government?
Well, for years and years AT&T and the government worked very, very closely together. In the world of Ma Bell, there was one phone system for the entire country. … Typically you'd have somebody who used to be an FBI agent or someone like that who would go work for AT&T, and they'd have very close, personal relationships. What that meant was, at a personal level and at an institutional level, the phone companies were going to help the government when they needed to help them during an investigation. ...
So AT&T for years had a special office to handle wiretap requests. The special office was mostly staffed by people who previously had worked in the federal government. There were close personal relationships, and that made the business a cooperation between the phone company helping investigations, the FBI doing the investigations. That helped them have a sort of ease of operation that was very helpful for them.
[What was the historic relationship between the telegraph companies and the forerunner to the National Security Agency?]
For decades most communications that were international happened by telegraph, and that meant that the government, the federal government, the National Security Agency as it's now called, wanted to have very good access to those international communications. During the '40s, the '50s, the '60s, most foreign telegrams went through the United States government to look at as part of them being sent overseas. …
The government would actually get copies at least of the telegrams and in some instances would get them at the same time the telegrams were being sent.
Did that ever cause a problem?
It didn't cause a problem for a long time because no one knew about it, and it was secret. But as part of the whole Watergate era, the covers came off, and these telegram interceptions and many other things became public during part of the Church [Committee] hearings that happened in that period. ...
When Sen. Frank Church did his hearings [of the Church Committee, formally the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities] in the mid-70s, they found out agency after agency had broken the law. The CIA was doing spying at home contrary to the law. The National Security Agency was reading these telegrams that were going overseas. …
They found that anti-war protesters had had false stories told about them. One man was said to be having an affair with a different woman, and it split up his marriage. The FBI did it just to create a wedge inside one of the activist groups. So when you're destroying people's family lives for political purposes, that's the kind of story that resonates and that creates a sense of outrage. That's not what a free society is really about. ...
The FBI, without warrants in many cases, was wiretapping senators, political figures such as Martin Luther King, and that is diving deep into American politics. It creates the possibility that intelligence will be used for blackmail politically and undermine the political system.
So what happened? What was the reaction in Congress? …
When it comes to wiretaps, Congress passed a new law that set the rules of the road for what's called foreign intelligence surveillance. When you're going after spies, such as the Soviet Embassy, when you're going after terrorists, now we were going to have a new legal system with a new special court to oversee that process. ...
Congress was putting in new checks on the process of surveillance. Before there had been loopholes, and President Nixon had driven large trucks through those loopholes. Now it was time to have a system of law where judges were going to authorize wiretaps, and no other wiretaps were allowed. ...
The Foreign Intelligence Surveillance Act [FISA] created a new compromise. The government had a new burden on it. It had to go to the secret court and get judges to approve the wiretaps. But the government got some big advantages. It got an imprimatur from the court. The court was saying these wiretaps are OK, and you never have to tell people afterward they were targets of the wiretaps. For ordinary criminal wiretaps in the United States, if you go after the mob, the mob gets notice after the fact that they were subject to wiretaps. They get to see what the wiretaps did. But when it's spies or terrorists or foreign agents, we never tell you after the fact you've been subject to the wiretap, and secrecy is thus maintained.
... How did technology in the field of communication change in the '90s and what were the implications for agencies like the National Security Agency or the FBI? ...
There was a huge technological change once you got to the 1990s. In the old days phone calls were made over copper wires, and it's easy to wiretap them. You touch one copper wire to the other. But if you then have fiber optic, if you touch glass to glass, you can't hear anything. So all of those phone calls going through the fiber-optic cables went dark as far as the government was concerned.
Another problem in the 1990s is that the Internet was starting to happen, and the old phone company monopoly now meant that there were thousands of different Internet service providers, each of whom might be originating or receiving e-mail. You didn't have one-stop shopping for surveillance anymore. ...
One of the big battles in the 1990s was encryption. ... [O]n the Internet people wanted to use encryption just to send their ordinary business communications or personal communications. This meant encryption was going to scale up in a way that no FBI person had ever imagined, and the agencies were scared they would lose the ability to see ordinary traffic. ...
By the 1990s, from the intelligence agencies' point of view, there were too many ways for people to communicate, and many of those ways were not in a good system for the intelligence agencies to watch.
What kind of eavesdropping was being done late in the Cold War by the National Security Agency and by the FBI?
During the Cold War the National Security Agency was listening in to microwave transmissions, satellite transmissions. All of those communications from point to point were going into their computers, and they were picking out the key words and the key communications. That means they get everything and select a few for special attention. That's different from the FBI, where they select one person and then listen to those words with particular attention.
So it's kind of wholesale. It's kind of like the NSA has got a bucket. It's just taking a whole Niagara of communications.
For the National Security Agency, it's a whole Niagara of communications, millions and billions, and they select out the key ones for analysis. For the FBI, they get one person at a time, a rifle shot, just very specific, and they listen to that and make their criminal case.
... What was the NSA? What were their capabilities?
In the public domain there is a report by the European Parliament about Project Echelon, and according to that report the NSA was listening to essentially all telephone communications in Europe over a period of years. …
And so they could gather them all, and then what?
According to the public reports, they would sift for key words or key persons and then focus in their analysis with enormous computers, focus in their analysis on the areas that had the highest risk associated with them.
So they're doing computerized, automated searches of a great volume of traffic. Is that what's going on?
Yeah. They're doing computerized and automated searches of enormous volumes of telephone traffic. ...
OK. So what does the FBI do? … Does the FBI have a system? Do they have a sort of modern breakthrough they want to apply?
One of the big changes for the FBI once we got to the 1990s is that they were losing the copper-wire wiretaps they'd always done, and so FBI Director Louis Freeh made a priority. He says, "We have to be able to wiretap the new phone network." This led to a law in 1994 called CALEA, the [Communications] Assistance [for Law] Enforcement Act … that said the telephone companies had to build their new fiber networks in ways that were wiretap-ready. That meant that the networks were now built at the switch level to handle wiretaps and to handle them probably in a much higher volume than before.
So we're not talking about the wiretap on an individual wire at this point; we're now talking about putting some kind of device in at the switching center and getting the whole flow of traffic.
The change in 1994 was that the wiretaps could be done at the switching center. The question that keeps coming up later is, is that going to be one person at a time, or is that going to be a much, much broader kind of wiretap at the switch level?
Does the FBI have a program that could do that, a computerized program?
In 2000 the press reported an FBI program called Carnivore, which was a device that could do very large-scale snooping at the switch level.
And what happened?
What happened in 2000 when Carnivore was announced was a tremendous outcry from the Republican Congress, complaining that the Democrats were leaning too much on surveillance and shouldn't do so much wiretapping. …
You said wiretapping at a broader level. What does that mean?
Well, instead of wiretapping one person at a time, now you might be able to wiretap everybody in the neighborhood or everybody who's going through that switch.
You mean if you're in someplace like New York or San Francisco, you can wiretap the whole city if you want to?
Well, some of the switches are pretty darn big, and when you get to the AT&T case, there's allegations that at the switch level we're talking huge volumes of calls, maybe for millions of people.
Let's look at what happened after 9/11. ... Where is the NSA on the eve of the attack on the World Trade towers?
On the eve of the attacks, the NSA is going to have big capabilities to intercept international communications and try to scan those for high-value content. There are strict rules in place that the National Security Agency isn't supposed to be spying on U.S. persons, so when it's international-to-international [communications], that's the job for the NSA. If it involves U.S. persons, that's the job for the FBI.
And you at the Clinton administration, in the White House, are you getting any pressure from the National Security Agency or the other security agencies to change the law and to let them do more domestically? …
In 2000 I chaired a White House process to update the surveillance laws for the Internet age, and we proposed legislation in the summer of 2000 that would have given the FBI, the National Security Agency a number of new authorities to match the new technologies. We sent that to Congress. We also had some new privacy protections as part of that. The Congress rejected it. They said it was too much surveillance. They thought we were too surveillance-happy at that point.
… Was the Patriot Act similar to what you all had proposed?
The Patriot Act took our proposals to update surveillance authorities, and then it doubled or tripled those, and it took our proposals to update privacy protections for e-mail and such and took those out. So many of the same issues we had discussed at great length during the Clinton administration, had proposed in many instances to Congress, but my concern was it was an unbalanced package. It was all surveillance and no updating to protect civil liberties.
And when you say it took your proposal, the guts of the Patriot Act, in terms of electronic surveillance and wiretapping and eavesdropping, what did it do?
The Patriot Act did various things. Some of it was updating from a telephone-era language to Internet language. So before the wiretaps affected devices, but maybe we couldn't do wiretaps with software. Well, that didn't make sense anymore in the Internet age -- hardware, software, they should be the same.
Another thing was in the old laws you'd have to get a different judge to give you a court order as you went from one stop to the next in the communications chain. In the old telephone era it was one stop with AT&T. We supported the idea that you should be able to get one judge who would give you the order to follow beginning to end. ...
Was the Patriot Act a big jump in authority, in legal capability for the intelligence agencies?
The updating was a significant and proper jump. Then there were additional jumps around foreign intelligence surveillance that were part of the Patriot Act. The biggest thing was that we were going to allow a lot of these secret wiretaps for foreign intelligence surveillance when there was only a very tentative link to foreign intelligence. So this meant that the wall was going to [go] down; it meant that we were going to have law enforcement and foreign intelligence merging their searches and merging their data much, much more than before.
We were operating on a system of very particularized, very targeted surveillance in this country. It had to be focused on individuals. [Did the Patriot Act change that?] ...
Some of the changes in the Patriot Act took the targeted measures where they could go after one person's records, and suddenly the authorities meant they could look at the entire database. That wasn't really debated much in Congress. It was something that was for the ease of operation [of] the surveillance people, but it meant that millions of Americans' ordinary records were getting swept up in ways they hadn't previously. ...
One big change that most people haven't quite seen is that before the Patriot Act, you could get a national security letter, one of these special [letters] without a judge, get the phone records letters, but it would be about one person -- just about me. But now the language was changed so the government can get the entire database, and that's just a little change in the language. NSL, national security letters, get X -- but X went from the suspect to being the entire database.
And that applies to everything: telephone records --
Telephone records, financial records, your credit histories, and it applies to the other kind of orders for any kind of record in the American economy. …
... What's the mind-set post-9/11 in terms of information gathering? ...
One change after 9/11 was the idea that more information is always better. There came along a generation who had forgotten the Watergate era. They'd forgotten how FBI and CIA agents had gotten burned, and now they just thought more was better: "We don't care what the rules are. We're just going to get the data, and we're going to go after the bad guys."
People have called that a total information mind-set.
The famous way that the new philosophy got encapsulated by Adm. [John] Poindexter [was] when he created this Total Information Awareness program. And Total Information Awareness listed, we want Americans' medical records; we want their financial records; we want their phone records, because that way we can have information dominance over any possible enemies. We can spot the patterns before they do harm. ... Whatever might turn out to create a lead they wanted in their database first so they could search through that database before the bad thing would happen.
You're talking about something called data mining. Is that right?
Right. ... Total Information Awareness was a belief that data mining was going to be the answer; that if we could take this huge set of data and scan it with really cool statistical techniques, then we could find the surprising pattern of fertilizer purchase before Oklahoma City got picked up, or we would find the people [taking] flying lessons before they fly them into 9/11. Somehow we would spot the new attack before it ever happened, because we had all the data, and we could see the patterns before they really took shape. ...
There's a huge question whether that works. There's a lot of problems, assuming that you have all the data, that only the good guys will see the data. There's many problems here. But the philosophy of Total Information Awareness is we're going to spot the problem before it happens. Prevention, not law enforcement, is going to be our watchword.
… What was your reaction to the warrantless wiretapping program that the president conceded existed?
This was enormous news. When The New York Times told us about the NSA wiretap program, for people like me, it was as though there was this alternate universe. We had thought we had a legal system and we knew what the moves were, and it turns out that the NSA was doing something entirely outside of that.
And yet the president says, "I authorized that." As a lawyer, as somebody who specialized in information technology and the law for a quarter of a century, what's your bottom-line take on this? …
I was outraged. I tend to be fairly level in the way I approach things, and I had a sense of outrage that they would just disregard the law. The law said the exclusive authority for wiretaps were these other statutes, and the president looked at exclusive authority and said, "Except when I feel like it." It was as though the lessons of Watergate had been forgotten. It was as though the lessons of centralized executive power and the problems that come with that had been forgotten. And now the president just said, "I think I can do it my way."
So you're saying the president violated the law?
My view is that the president violated the law, yes.
The FISA law. The Foreign Intelligence Surveillance [Act] law says the exclusive authority for wiretaps is going to be either the FBI wiretaps for crime, or it's going to be this foreign intelligence wiretap when the judges look at it. Those are your choices. This was number three. It didn't fit.
So the exclusive authority is the law and the FISA court, the secret court that issues the warrants. Is that it?
The FISA law. Yeah, that's it. It's that the FISA law doesn't allow a third way. ...
Now the president's lawyers, including John Yoo, working in the Justice Department Office of Legal Counsel, issued an opinion saying the president has the power constitutionally to authorize these warrantless wiretaps as part of his powers as commander in chief during war. What's your take on that?
They have two arguments. One argument is that the authorization of use of military force which was about going to Afghanistan with armies meant that he could do wiretaps on Americans in the United States. I just thought that's not what the authorization said. It just wasn't true.
They had a second argument. The second argument was the president has inherent powers as commander in chief, and even if Congress writes a law that says he can't do it, the president is so powerful here, he can override the statute. I don't think that's true either.
So what do you say to John Yoo?
I say he's wrong. I mean, what do we say to John Yoo? You can say, "Let's have some elections and test this." You can say, "Let's get it to the Supreme Court." But essentially this was -- if you look at the different views of executive power out of 100 law professors, John Yoo in my view is out of the one or two on the farthest extreme of where the president was, and that had become the doctrine for the president of the United States. It was way out there compared to all the people who have studied this, and I just think it was a bad decision politically, but a bad decision on the law about how executive power works.
Now, the president has described the program publicly, and to a certain extent Gen. Michael Hayden, the former director of the NSA, Attorney General [Alberto] Gonzales have followed the same line that makes it sound as though the eavesdropping is from one point overseas -- Al Qaeda -- to one point in America; point to point, person to person. Is that what's going on here, or is there more going on?
Well, there's still mysteries here. There's one program that the president and the attorney general have announced publicly, but there's very strong reports about other programs that are happening, too. ...
What are you talking about? There's one program; ... it's the program the president describes. What else have you got in mind?
Well, there's two other revelations that we've had -- three programs to keep in mind. Program number two has to do with a whistleblower for AT&T who says that some of the big phone switches where huge amounts of communications go in and out between the U.S. and overseas, there's a direct feed to the government. That's not point-to-point for people linked to Al Qaeda; that's anybody who's sending e-mails or [making] phone calls overseas.
[The] next report was the USA Today story in the spring of 2006 which said that for 40 or 50 million Americans -- that's not all Al Qaeda -- 40 or 50 million Americans, [their] detailed phone records have been turned over to the government by the big phone companies. So now we have huge numbers of ordinary communications being intercepted, huge numbers of ordinary Americans' phone records being taken, and no legal structure in place to do that. That's much, much broader than a few people linked to Al Qaeda. ...
[T]his business of turning over the stored communication records for 40 or 50 million Americans, is that legal? …
I think it's illegal according to the published reports. There's something called the Stored Communications Act. It says what the rules are for when the government can get people's phone records, but the published reports went down each of the exceptions and said they didn't apply. And we had apparently senior lawyers for one of the phone companies, Qwest, that decided not to participate. … The published reports said ... that Qwest had asked for a warrant, and the government refused to do it.
Could the National Security Agency have gone under the FISA law and gotten a warrant to obtain stored communications, records, for millions of Americans?
I think that would really be up to the judges on the FISA court. The Patriot Act says you can get the whole database. If the whole database is 10 million people, that's something that was never discussed in Congress, [has] never necessarily been approved by any court. The court might decide that's a general warrant and it violates the Fourth Amendment, but the words in the statute would appear to allow it. …
... The third program you were talking about is this AT&T program. ... What is your understanding of what is happening in the AT&T case?
This program sounds like it could be Carnivore on steroids --
That old FBI eavesdropping program.
Getting all the e-mail and having it be sent to the NSA. When that happens, we have interception of e-mails going from point A to point B. That's an intercept moment when you're breaking the law unless you have a wiretap. … You need a warrant, you need a judge, either a FISA warrant or an ordinary wiretap warrant. But you cannot intercept e-mails unless you have a judge sign off on it. Now we have many, many people's ordinary e-mails being intercepted. …
There's a lot of data flowing through there. It isn't just private e-mails, but it's Internet shopping; it's businesses; it's everything. … What do you think is actually happening there? What's going on?
... Probably a lot of it is much more boring than you'd expect, which is they don't know what to do with it, right? It's a lot like the files you've got somewhere in your closet at home, and they really don't know what to do with it, but they think someday it might be useful, so they don't throw it out. But part of it is, they're trying to figure out, maybe we can data mine. Maybe we can find a pattern. Maybe we can spot something. You know, it's just holding on to more data, thinking somehow it might help. ...
Are they looking at the contents at all, or are they looking at the to and from, who's talking with whom?
Sometimes it's to and from. It's traffic analysis. You try to figure out who the network is. That's an important technique, but if you're looking at everybody's e-mails or you're listening to lots and lots of phone calls, that's the content. It's what's actually being said. And our laws had much stronger protection around that. …
So what do you think the government's doing? Is the NSA trying to find out who are suspicious characters, suspicious enough they can put some things together to actually go get a warrant?
... [In] law enforcement you have to prove beyond a reasonable doubt; you need really strong proof. But for intelligence maybe you just flag somebody you never realize you had to watch, and then you flag that he had a funny conversation with someone else you're watching, and gradually you start to see something. That's the hope in the intelligence world. And so the intelligence people want the huge volume of information, hoping somehow they can maybe find a lead so that one of those attacks gets stopped before it happens.
Why haven't they done this through FISA? ...
The hard thing through FISA is, you get to wiretap people where there is probable cause that they're an agent of a foreign power. You have to already link them to a terrorist group or link them to a foreign country, and then you get the FISA power. The hard issue under FISA is, what if you just have a little bit of a clue? Can you start surveillance on them in the United States?
Are you saying this AT&T case, if the NSA is doing that, is a fishing expedition? They're trying to get more proof that somebody is a terrorist?
Sure, it's a fishing expedition. Maybe we'll get a little bit on somebody, and we'll get a little bit on that same person somewhere else, and eventually maybe we'll even go get a FISA warrant from a judge.
... When we're doing this kind of data mining, the government is doing this kind of data mining, has it moved from individualized suspicion, getting an individual warrant, to generalized suspicion to check everybody to find out who are the bad guys?
Yeah. Check everybody. Everybody is a suspect. Everybody's phone records, everybody's e-mail is subject to government scrutiny, and if you're good, we won't bother you, and if you look a little strange, then you might get on a watch list.
Isn't that a huge change in Anglo-Saxon law? I mean, Anglo-Saxon law is based on "get a warrant." The Fourth Amendment is based on individualized suspicion.
Right. General warrants was part of the reason for the American Revolution. It was that the king's agent could go in and search a house everywhere, search a whole neighborhood with one warrant. And the Boston people said: "We don't like that. We'll have a tea party. We'll fight you." We said no.
So it's a very big change. It goes to the idea of whether you start with a presumption of innocence, whether you start with a presumption that individuals are free from government listening to their conversations. Or do we shift to this, which is your e-mails get read, maybe by just a computer, maybe by the NSA analyst; your phone calls get listened to, and if you're good, we won't hassle you. That's a big change.
There are people who argue that in today's communications world, you can't live under the old rules. FISA's broken; the old Anglo-Saxon principles don't work anymore. What's your response?
My response is in every generation the government wants to know everything about its citizens, and if you set up a secret police to listen to all the ordinary people, it's a bad way to go. ...
New world; mass communications; terrorists among us; homeland is the battleground; the president is commander in chief. None of that persuades you?
Let's look individually. Are there specific tailored problems? [Then] you fix it. But the president during the Civil War, during World War I, during World War -- in all the periods in history, presidents want more power. It's normal. It makes their life easier. They can achieve their goals better. But our American job back is to say, "Checks and balances." And that's what's been lost in the last several years.
Do you think our privacy is in danger because of what the NSA is apparently doing?
Yes. And I think that the idea that individuals basically get to communicate with their friends and their family and their businesses themselves, without the government listening in, I think that is in danger. And it chills our speech; it chills our ability to dissent; it chills political participation, and it gives too much power to people who don't have to explain themselves to the judge or the American people because they're doing it in secret.
Why is the FISA court, the judge or the Congress so important to this process?
Because if you go back over hundreds of years, the cop is a zealous person. You want your cop, you want your intelligence agent to go full bore, to be really devoted to what they're doing. And then you want somebody to say: "Wait a second." We don't want Dirty Harry. Wait a second. We don't want out-of-control shootings. We have to have some ways to rein that in. So you want the energy of the executive, and you want the checks and balances on that so we get energy and we get rule of law. That was our American invention. That's the whole checks and balances, Madison Federalist Papers. It's those inventions that can get put at risk if it's just saying: "Commander in chief. Stop there. Don't question it." …
Gen. Hayden, the attorney general, they have said: "We're not doing a drift net. We're not doing data mining." Sounds like a denial of what you're talking about.
What they've said repeatedly is that "We're not doing the drift net in this program." But it might be program number two or program number three.
This program being what, the president's program?
Because they were talking about the president's program, and then the other things we're worried about tend to be happening in these other programs they haven't admitted to.
You're suggesting that they're playing word games; this isn't a true denial.
And you've looked at it closely?
I looked at the attorney general's testimony very carefully, and every time he gave the big denials, they were attached to the words "this program."
The president's program.
The president's admitted program, leaving open what was happening with other programs.
So you're suggesting that it sounds like a denial, but it doesn't cover the waterfront.
He's a former judge. He's a smart lawyer. The attorney general was speaking very carefully and under oath. But I think there could be lots of room after you read his testimony for other programs to be doing really unprecedented things. ...
Editor's Note: Read excerpts of how President Bush, Gen. Hayden and Attorney General Gonzales have described the program.
What did the Privacy Act do? And does it still do it today? ...
The Privacy Act was another one of the Watergate laws. It came about to try to stop having the one big government database that was going to be about every American. And it said that you're not supposed to have secret databases; it said that you're supposed to be able to see the records the government has about you; and it says that they're not supposed to take it from one agency and ship it to other people, to other agencies in the private sector, unless you give your consent.
So that sounds pretty good, but it was really based on the mainframe world of the 1970s. It's been very hard to figure out how to update that for the Internet age and the PC age. So a lot of times today you'll see the government say, "Well, we complied with the Privacy Act," and that's like saying, "We have a fence that's 6 inches tall, and the fence is in place, so you're still protected." But everybody can step over that fence, so it's not a very strong protection these days.
… [Do] the FBI and other intelligence agencies have greater access to and permission to use information from the private sector today than they did before 9/11?
Well, sure. And some of it is internal Department of Justice rules -- the guidelines, as they're called. Those were relaxed, and it's much closer to open season as far as Department of Justice guidelines are concerned. When it comes to the Privacy Act, the law didn't change, but there's a change in computers that changed everything. It used to be the fear that the government would have the government database in some big room and IBM Brainiac computers, and the Privacy Act said, "We're going to protect against problems there." Today --
You can't have a big database. ...
Yeah, you can't have the big Brainiac with the one database on all Americans run by the government. But here's the trick. What you can do if you're the FBI is you can ping the private-sector database: "Hey, LexisNexis." You can access it. "Hey, give me some information on this person or on that person," and as long as you just access it one at a time, which is the way it works anyway, Privacy Act doesn't apply, because it's not a government database; it's the private-sector database. The law doesn't apply to the private-sector database. …
... Is there a real close, collaborative [relationship] say, between the FBI and a company like ChoicePoint?
Oh, I think so. Yeah, ChoicePoint sees the FBI as a strategic partner, and ChoicePoint feels patriotic when they do that. They're helping the FBI find bad guys. And the FBI wants to have state-of-the-art access to information, and they think that if the private sector is using cool databases that the government should do it, too. So there's a very tight relationship. ...
What can ChoicePoint do for the FBI?
One thing it can do for the FBI is it can help an FBI agent find a witness or do a background check on somebody who's part of a case much more quickly than before. So a lot of the legwork, a lot of the hours spent in tedious detail, can be shortened and made more efficient. Those are things that probably make a lot of sense. …
Do we need new laws? Do we need new regulations? …
Sure, sure. There's a number of fixes. Some of the things for the Patriot Act went too far. It should be brought back more in balance. We should update protections for e-mail so that they're similar to phone calls. Right now, if the government breaks the rules when it intercepts your e-mails, it can still use them in court. They can't do that for phone calls … So if the government's breaking the law every day and looking at e-mails it shouldn't, it can still use those in court. It doesn't have to follow the law. ...
Congress killed the funding for the Total Information Awareness program of Adm. Poindexter. Is Total Information Awareness dead in the government, or does it live in another form?
No. They've moved the programs, from what we can tell, under other names and into other departments. So "the program" is dead, but the program in its pieces lives on, from what we can tell, in a number of other places.
And we're really talking about a mind-set, a concept of how you combat terrorism.
And the mind-set lives on. It is really the philosophy of the surveillance approaches of the current government, which is more in the government's hands is better because that way we might prevent the next attack. …
What do you say to the government people who say, "Look, the real invasion of people's privacy has occurred in the private sector"? ... Is there something different about having the government have this kind of access? And is there something different about having it compiled in one place or accessible in one place?
Here's a big difference between the public and private sector: If you decide to go online and do business with some company, you're choosing that company, and if you don't like how they're doing it, you can stop doing business with them. But you can't stop the government. They show up with compulsory process -- they're the government -- and so that voluntary element is not there. And that's why we have to have stricter rules on the government, because we don't have the market limits and we don't have the voluntariness limits. It's just if the government wants it, they can force those records to be turned over. …
Is our privacy in danger because of the way the war is being waged against terrorism?
Sure it is, because the communications that the government wants to look at are the expressions of ourselves, and that's where we want privacy and we want to maybe say no to the government. So the government's saying yes and [our] saying no at the same time, that's a real clash.
And is the clash between the drive to catch, stop the next attack ...?
Well, the government says it's all to stop the next attack. The government says we want information dominance. It's the government being big and powerful, and usually when we think of individuals in the United States, we think of ourselves as free and powerful and the government [as] limited. This is not a government of limited powers; it's a government of all-seeing powers. That's why Total Information Awareness had that big picture of the eye looking out at the whole world, and that reinforced the idea that the government was trying to see everything. And where does that leave individuals, and where does that leave democracy?