How Secret Must Surveillance Be?

Accordiing to Haaretz.com, the Movement for Freedom of Information in Israel has obtained evidence that cell phone licenses in Israel "contain a secret codicil requiring them to give the Shin Bet security service information about conversations and messages that its customers transmit on their cell phones," and a similar clause allows Shin Bet to access information about Internet communications.

The fact that the very clause requiring cell phone and Internet service providers to cooperate with government requests for secret illustrates an increasing trend to maintain secrecy not only about the specifics of ongoing surveillance programs but also as to the very existence of those programs. There is no question that the effectiveness of surveillance would be reduced by revealing the details about many programs: knowledge of the patterns that identify potential targets for surveillance, the methods used to tap into conversations and acquire information, or the analysis to which acquired data is subject, may allow would-be criminals to evade or compromise surveillance efforts.

It does not necessarily follow that the very existence of every surveillance project must be a secret. The marginal value of secrecy concerning the entire project needs to be weighed against the countervailing interest in accountability and responsible use of surveillance powers. External awareness of the program allows for a society-wide dialogue on the appropriate balancing between security and privacy values, and helps to prevent "mission creep" or the abuse of surveillance gathering authority. Moreover, the decision to conceal a program's very existence is dangerous because such a decision is effectively immune to challenge or review.

As Roi Peled of the Movement for Freedom of Information in Israel phrased it, "[there is] a typical confusion between issues involving security and issues that might damage security." Intelligence-gathering agencies should consider the need for secrecy, and the trade-offs between security and accountability that secrecy entails, on a case-by-case basis, rather than presuming that all intelligence-gathering activity should be secret insofar as possible.