On June 6, 2013 The Guardian newspaper printed a story alleging that the National Security Agency (NSA) was collecting telephone records of millions of Verizon customers in a top secret government sanctioned program. This would be just the first glimpse at the many disturbing actions revealed by a man named Edward Snowden, a former Central Intelligence Agency (CIA) employee and NSA contractor who used his computer prowess and security clearance to collect information about how the United States government has been monitoring its own citizens. Mr. Snowden’s actions have prompted the government to file criminal charges against him including theft of government property and espionage. This situation raises serious questions about the legality and ethicality of government surveillance programs as well as security of personal information.
There has always been a debate over the trade-off between privacy and security, and this is a perfect example of that discussion. This is an issue that affects anyone who utilizes the technological advancements of today, regardless of the criminality (or lack thereof) of their actions. To better understand this issue we must first take a look at the laws that govern surveillance and the laws that protects our individual freedom from unwarranted surveillance. Two of the most important documents that focus on these issues are the Fourth Amendment to the US Constitution, which protects Americans against unwarranted surveillance, and the Electronic Communications Privacy Act, which was instituted in 1986 as an update to the law governing government wiretapping programs.
Since the issue at hand regards government surveillance in general and the Fourth Amendment was written to protect Americans from this act, it is worth quoting in full: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. According to Jackson Lears (2013), the Board of Governors Professor of History at Rutgers University and Editor in Chief of the Raritan Quarterly Review, this Amendment was “written by men who had rejected imperial power and were determined to prevent its reassertion in their new nation…Nothing could more flagrantly violate those requirements than the NSA dragnet” (p. 4).
Although our Constitution was written almost 230 years ago, and the men who wrote this document could not have possibly foreseen the technological advancements that would be made in that time (i.e. the telephone, nuclear weapons or the Internet), they were witness to the abuse of government power and tried to institute broad principles to mitigate the possibility of their new government becoming corrupt in that way. The problem our country faces, however, is that in order to regulate this type of behavior it must first be known, which until Edward Snowden appeared had only been considered speculative, and then addressed (Richards, 2013, p. 1934).
The government has made attempts, however feeble, at implementing additional laws to prevent this type of abuse of power in the past, but has not kept up with the times when it comes to updating these safeguards. The Supreme Court ruled in 1928 that warrantless wiretapping was not illegal, but that ruling was overturned in 1967 and it was not until 1968 that Congress passed legislation governing wiretapping. In the same fashion, the Electronic Communications Privacy Act was passed in 1986 as an amendment to the Wiretap Act, but has not been updated in the nearly 30 years since it was enacted (Freiwald & Métille, 2013, p. 1291).
The only two times Congress has clarified what may or not be done in conjunction with the Electronic Communications Privacy Act was in 1994 with the passing of the Communications Assistance for Law Enforcement Act and the Patriot Act (passed in 2001 only 6 weeks after the attacks on September 11), which both “further eased the restrictions on law enforcement surveillance” (Freiwald & Métille, 2013, p. 1292) and “ensured[d] that providers of telecommunications services maintained the accessibility of their systems to wiretapping (Freiwald & Métille, 2013, p. 1293). Friewald and Métille (2013) also explain that “surveillance that proceeds outside the bounds of the ECPA (and related statutes), either by virtue of not being historically covered, or by virtue of being too new to be included, can proceed without any judicial review, so long as a court has not yet held that the Fourth Amendment requires regulation (p. 1295-1296). The question we must ask is whether or not this type of surveillance is necessarily dangerous or if it is necessary to protect our country and national security.
According to Neil Richards (2013), “First, surveillance is harmful because it can chill the exercise of our civil liberties…Second, we must recognize that secret surveillance is illegitimate and prohibit the creation of any domestic-surveillance programs whose existence is secret…Third, we should recognize that total surveillance is illegitimate and reject the idea that it is acceptable for the government to record all Internet activity without authorization” (p. 1935-1936). The first idea that Richards raises deal with our civil liberties such as freedom of speech. When people are constantly under the fear of government surveillance, they may be less likely to speak their mind when they disagree with public policy because they may fear retaliation or retribution for their dissent.
The second point of secret surveillance deals with the idea of accountability for those who are performing the surveillance. If a blank check is written by Congress for surveillance with no oversight as to what surveillance is being performed, then there can be no guarantee that the people performing the surveillance are not violating our personal privacy. If the government wants it’s people to trust them, then they should be comfortable with the idea of “trust but verify”. Finally, the idea of total surveillance is the most concrete example of the violation of the Fourth Amendment which requires probably cause as a basis for any intrusive action by the government.
I am not against the idea of surveillance, especially in the dangerous world we live in, but at the same time we must find a balance and understand our limits. In order to preserve our individual freedoms we must be willing to accept a certain level of insecurity and a certain level of personal responsibility. The level of personal responsibility we must accept is to be willing, and able, to defend ourselves without relying on the government to do it for us all the time. One example of this is the attacks of September 11, 2001 where 4 planes were hijacked and used as weapons. Out of these 4 planes, only the passengers of one, United flight 93, were willing to stand up for themselves against the hijackers. If the hijackers knew that the passengers on each and every plane would have acted with the bravery and heroism of those on the United flight, I doubt they would have hijacked any of them.
As far as accepting a certain level of insecurity goes, that is just a part of life; there is no way we can prevent every horrible thing from happening. I understand the human desire to prevent bad things from happening, but what cost are we willing to pay for it? If we want to prevent car accidents that occur from deer running into the road, does that mean we should kill all the deer? In the words of Benjamin Franklin, one of our Founding Fathers and signatories of our Constitution, “They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
Lears, J. (2013). EDITOR’S NOTE. Raritan, 33(1), 1-6. Retrieved from EBSCOhost. Richards, N. M. (2013). THE DANGERS OF SURVEILLANCE. Harvard Law Review, 126(7), 1934-1965. Retrieved from EBSCOhost. Freiwald, S., & Métille, S. (2013). REFORMING SURVEILLANCE LAW: THE SWISS MODEL. Berkeley Technology Law Journal, 28(2), 1261-1332. Retrieved from EBSCOhost.