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Keeping Us Safe Vies With Privacy Rights

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Gerald Weber

Questions about the balance between personal privacy and national security were the focus of another panel last week, sponsored by the Federalist Society.

A former National Security Agency general counsel, Stewart Baker, debated local civil liberties lawyer Gerald Weber Jr. over the appropriate balance between Americans' right to privacy and the NSA's collection of their electronic communications data in its efforts to spot foreign nationals who threaten the U.S.

Baker was the NSA's general counsel from 1992 to 1994 and then the Department of Homeland Security's first assistant secretary for policy in 2005. A partner at Steptoe & Johnson in Washington, his practice includes telecom, Internet, cybersecurity and privacy law.

Georgia Supreme Court Justice David Nahmias moderated the Tuesday lunch attended by about 75 Federalist Society members and guests at Kilpatrick Townsend & Stockton. "I do not want to frame this as a liberal versus conservative issue," said Nahmias, a former U.S. attorney. He pointed out that a strong strain of conservative thought supports privacy rights against government intrusion.

The news leaked by former NSA contractor Edward Snowden that the agency is collecting and storing Americans' phone call and email metadata has sparked controversy because its purview is spying on foreign nationals. The Foreign Intelligence Surveillance Act (FISA) of 1978 restricts the NSA from collecting electronic data from U.S. persons or in U.S. territory.

But NSA documents made public by Snowden indicate that the spy agency is picking up American communications and storing them while trawling for foreign threats with its data-collection nets.

Weber cited the most recent Snowden revelation, published Oct. 14 in the Washington Post, that the NSA has been collecting more than 500,000 email address books per day from Google, Yahoo and other email providers. The collections take place from Internet switches overseas, but they have swept up the information of Americans along with that of foreign nationals.

When trawling for tuna, the nets catch some dolphins as well. In the same way, Baker argued, the benefit of catching terrorists outweighs the fact that some Americans' electronic communications will get caught in the NSA's net.

"There is nothing more powerful than knowing the connections between people when hunting terrorists. And inevitably some of the address-book information gathered abroad is going to be Americans'," Baker said.

Weber's view was that the NSA should use dolphin-safe nets. "I am concerned about instances of overreach," he said.

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