- The Washington Times - Tuesday, January 15, 2013

Uncle Sam is looking for ways to sharpen his watchful gaze. In the name of fighting terrorism, federal agencies can have a hard time distinguishing the line between legitimate surveillance and unlawful spying. Fortunately, a court ruling on the public’s right to know may brighten that line. Loss of hard-won liberty ought not be the price for keeping Americans safe.

On Jan. 8, Judge Gladys Kessler of the U.S. District Court for the District of Columbia denied the Obama administration’s request to exempt documents related to the government’s Internet surveillance from Freedom of Information Act (FOIA) compliance. The judge also chastised administration officials for delays in producing records approved for release. In effect, she said freedom of information means just that.

The case involved a pilot program operated jointly by the Department of Defense and Department of Homeland Security started in 2011 to monitor electronic traffic passing through certain Internet-service providers in an effort to catch hackers launching computerized attacks against defense contractors’ networks. The Pentagon’s intelligence branch, the National Security Agency (NSA), partnered with AT&T, Verizon and CenturyLink to snoop on the Internet traffic of 15 defense firms that agreed to participate, including Lockheed Martin, Northrop Grumman, CSC and SAIC. Rather than scrutinize all their traffic, the NSA says it used filters that only looked for certain malicious code that would be a sign of hacker penetration.

Privacy advocates feared that having the feds tap into the public Internet flow could lead to government spying on the electronic communications of private citizens. The Electronic Communications Privacy Act prohibits the interception of online traffic without a court order.

The Electronic Privacy Information Center filed a FOIA request for documents related to the program and sued when the NSA did not hand over the information. The center prevailed in its suit, but the Justice Department, representing the Obama administration, petitioned the court for a protective order that would have prohibited the center from making public the documents it obtained through its FOIA filing. By denying the request, Judge Kessler affirmed the inviolable role of freedom of information rules in exposing government acts that would compromise the right to privacy.

To be sure, the nation needs robust tools to prevent terrorists and industrial thieves from undermining information links vital to national security. Defense Department officials estimate that Pentagon networks are probed by intruders about 250,000 times an hour.

However, the war on terrorism could end up transforming the “Land of the Free” into a surveillance society. Already, many American city streets and buildings are equipped with invasive video cameras. Smartphones contain GPS chips that track users’ movements. Law enforcement agencies deploy overhead drones to snap high-definition photos of suspects on the ground. Some school districts require students to wear ID badges that allow their whereabouts to be traced by school officials.

As government seeks ways to defend us from our enemies, it is crucial that the Freedom of Information Act be preserved as a means of preventing Uncle Sam from attempting to fix his unblinking gaze on us instead.

The Washington Times

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