New rules for NSA spying: Protect the presumption of innocence

In coming weeks, President Obama will decide how much to rein in the electronic snooping of the National Security Agency. The courts and Congress may weigh in, too. One nonsecret federal judge, Richard Leon, has already ruled that the NSA’s collection of metadata from all American phone calls probably violates the Constitution.

No doubt a new consensus will emerge in Washington, one that readjusts the balance between a protection of personal privacy and the need to detect foreign terrorists. The current balance was reached in several post-9/11 laws and rulings.

Americans know well the need to challenge such trade-offs – in Transportation Security Administration screenings of passengers at airports, it is almost a daily struggle.

The string of leaks by former NSA contractor Edward Snowden has revealed the extent of government surveillance. But for NSA reforms to be done well, we must also assess the extent to which people value privacy – even to the point of accepting additional risks from terrorists.

The right to privacy, as enshrined in the Constitution, is based on a presumption of innocence – that a person cannot be assumed to be guilty and then subjected to an “unreasonable” search or seizure. That presumption is also why people enjoy the privilege against self-incrimination.

Innocence is so highly valued that most modern societies put the burden on government to prove someone guilty – even if “everyone knows” a suspect is guilty. The criminal justice system is built on the idea that it is better to let the guilty go free than to convict an innocent.

As Justice Thurgood Marshall wrote in 1987: “It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. Honoring the presumption of innocence is often difficult; sometimes we must pay substantial social costs as a result of our commitment to the values we espouse.”

The real danger in giving the NSA too much unchecked authority is that the invasion of privacy may erode the social acceptance of innocence. In much of Europe, especially Germany, the loss of that presumption in the 20th century under fascism and communism helps account for Europe’s current outrage over NSA snooping in those countries.

The argument for NSA surveillance is largely based on “the precautionary principle,” that it’s better to find terrorists before they strike even at some cost to liberty. But as government officials decide new rules for the NSA, they must also weigh this precaution: It is better not to invade privacy too much if it challenges society’s basic belief in presumed innocence.