Former White House Director Discusses Balance Between Data Privacy and National Security
Timothy Edgar served as director of privacy and civil liberties for the National Security Staff.
On October 30, Boston University School of Law’s National Security Law Society hosted a lecture delivered by Timothy Edgar, visiting professor of law at Brown University, and former director of privacy and civil liberties for the White House National Security Staff under President Obama. He has previously worked as national security and immigration counsel for the American Civil Liberties Union, and has taught at BU Law and Georgetown University Law Center.
Following revelations of private information made by Edward Snowden in 2013, US officials were pressured to increase government transparency. Thousands of pages of documents were released to the public as a result. This, Edgar claims, has been a positive outcome of the leak, as has Presidential Policy Directive 28 (PPD-28). PPD-28 acknowledges that privacy and civil liberties of everyone in the world must be taken into account, and limits mass surveillance. Perhaps its most important rule, Edgar pointed out, is that limits were placed on the bulk collection of signals intelligence. Such collection is permissible if used for intelligence around terrorist activities or transnational criminal threats, to support military forces or cyber security, but it cannot be used to disadvantage anyone based on race, gender, religion, or sexual orientation.
Edgar suggested that negative revelations about spying have blinded us to many positive results it offers. He discussed the “unfinished business of surveillance reform,” noting that although the National Security Agency was founded in 1952, the country didn’t consider cyber security, personal privacy and civil liberties at the White House level until 2009. At that time, President Obama appointed Edgar to review NSA surveillance programs, strengthen consumer privacy, and improve online identity management.
On the international stage, he suggested that “many countries have programs similar to those in the United States, and have avoided questions and debates about what is ok, in terms of government surveillance, and what is not.” Referring to surveillance policies in the European Union, Edgar cited the recent Court of Justice case, Schrems v. Data Protection Commissioner, which determined that US companies don’t have an adequate level of protection for EU consumer data.
“If you look at the intelligence services in every EU country, not one has the level of restrictions that the US has,” he noted. He argued that the court laid out a series of requirements necessary for intelligence surveillance to achieve a happy medium that is consistent with human rights privacies and EU rights to data protection. “No European government meets the principles set out in Schrems,” he said, “but over the next five to ten years the decision will reverberate and set a precedent each country will have to follow when it faces its own legal challenge.”
The lecture closed with Edgar’s comments on the role of surveillance in the US, as well as his ideas for its future. “The criminal justice and national security interests in surveillance are so compelling that the government will find a way to do it, even if it stretches the legality,” he says, adding that the public must be flexible and understanding of the government’s need to monitor. “The US has the opportunity to lead the way in reforming surveillance laws, even beyond what we’ve already done,” he notes. “But rules we create need to be flexible to engage in legitimate intelligence gathering.”
Reported by Johanna Gruber (CAS’17)