Saturday, June 13
Privacy and Transparency: Looking Ahead
Moderator: David Pozen, Associate Professor, Columbia Law School
Panelists: Sarah H. Cleveland, Louis Henkin Professor of Human and Constitutional Rights, Faculty Co-Dir., Human Rights Institute; Dinah PoKempner ’89, General Counsel at Human Rights Watch; Lanny A. Breuer ’85, Vice Chairman of Covington & Burling
Columbia Law School Professor David Pozen Moderates a Lively Discussion About National Security and Privacy Rights in the Digital Age During Reunion 2015
How should countries balance privacy protections and national security investigations in an age where people protest government surveillance programs but voluntarily disclose vast amounts of personal data to private companies and advertisers on their social media accounts?
A panel of distinguished Columbia Law School faculty members and alumni addressed that question and many more during the Reunion 2015 discussion, “Privacy and Transparency: Looking Ahead.” Professor David Pozen moderated the conversation, which included Professor Sarah H. Cleveland, faculty co-director of the Human Rights Institute, the U.S. independent expert on the U.N. Human Rights Committee, and former counselor on international law to the legal adviser at the U.S. Department of State; Dinah PoKempner ’89, general counsel at Human Rights Watch; and Lanny A. Breuer ’85, vice chairman of Covington & Burling and former assistant attorney general for the criminal division at the U.S. Department of Justice.
PoKempner said that although the U.S. took a “modest” step when Congress passed the USA Freedom Act, many other countries are pursuing “regressive” legislation that will give them greater powers of surveillance in light of recent attacks and the threats posed by groups like ISIS.
Pozen introduced the lively debate by describing what is known as “the privacy paradox,” a trend in which more and more people are moved to protest mass government surveillance programs, even as they continue to reveal personal information about themselves online. “We live in an ‘expository society,’” he said, borrowing a term from fellow Columbia Law School Professor Bernard E. Harcourt, who is working on a book about surveillance.
“It’s a strange time for a conversation about privacy,” added Pozen, who worked as a special adviser to then U.S. Department of State Legal Adviser Harold Hongju Koh from 2010 to 2012, and whose forthcoming article, “Privacy-Privacy Tradeoffs,” was circulated as a discussion paper. “On the one hand, there is unprecedented mobilization and concern around the issue; and on the other hand, people often act in ways that suggest they don’t care much about their privacy at all. Our actions don’t necessarily live up to our commitments.”
The panelists discussed the steps governments around the world are taking with respect to national security threats and privacy rights, ongoing litigation in the U.S. and other countries challenging surveillance programs, and reform efforts in light of the information leaked by former National Security Agency (NSA) contractor Edward Snowden.
PoKempner pointed out that although the U.S. took a “modest” step when Congress passed the USA Freedom Act—which moved data collection retention to the private sector and requires judicial approval for targeted investigations about individuals—many other countries are pursuing “regressive” legislation that will give them greater powers of surveillance in light of recent attacks and the threats posed by groups like ISIS.
Breuer said Snowden deserved credit for creating a public discourse about privacy and surveillance. But he also said Snowden had made the U.S. less safe and weakened law enforcement efforts against terrorists.
“The U.S. has fewer tools than it had before, and terrorists are adapting their behavior,” Breuer said, adding that people had been hurt because of Snowden’s actions and that Snowden should return to the U.S. to face the consequences.
But Pozen noted various rebuttals that have been made to these arguments, including that Snowden feels he would not be able to mount a fair defense without the ability to argue that he was acting in the public interest when he disclosed classified information. Presently, that defense is not available under U.S. law.
PoKempner added that the U.S. has not offered a single example of someone who was hurt because of Snowden’s actions.
Meanwhile, she said, “he exposed rather gross failures of oversight, as well as lies by officials to Congress—it’s pretty classic whistleblowing.”
When Breuer suggested Snowden could have tried to change the system from within by using internal NSA mechanisms to reveal wrongdoing, Pozen agreed that technically this could have been tried, but then reflected on the potential “absurdity” of trying to do so given the character of Snowden’s criticisms.
David Pozen, Associate Professor, Columbia Law School, moderates discussion.
“When the inspector general says, ‘what’s your problem?,’ he would have to say, ‘the entirety of major, [Foreign Intelligence Surveillance Court]-approved NSA surveillance programs,’” Pozen joked, prompting laughter throughout the room. “Our existing whistleblowing mechanisms are a very awkward fit for systemic critiques such as Snowden’s.”
Cleveland, who spoke in her personal capacity and not as a representative of the U.N. or the U.S., said the question that should be addressed is whether the U.S. has a “fundamental problem of over-classification.” Whistleblowing is an “ex post facto,” or retroactive, remedy, she said, adding that we should be exploring how to incentivize transparency over confidentiality.
The panelists also took questions from alumni and guests, including inquiries on the right to be forgotten, Chinese hackers, and opportunities for governments to misuse collected data for political attacks.