Engagement

Reviewing my works, I found my researched multimodal argument to be my most effective use of the electronic form of communication.  In it, I was able to search out information on the NSA’s surveillance programs and a wide view of opinions on the topic before synthesizing my own view and composing the following essay.  I believe this work shows my skills in the electronic mode because I was able to present the essay in a form specifically tailored for the web and use on it.  My site was structured around this work, and I included hyperlinks within to connect my essay to its sources on the internet, making full use of the electronic resources available to me.  I also reached out to blog authors interested in my essay’s topic, as well as the Electronic Frontier Foundation, inviting them to view and comment on what I had written.  I made a few minor revisions to my work in response to my instructor’s comments, mainly rethinking and reformatting how my hyperlinks worked with quotes and how my works cited was set up.  I also included additional clarifying information in parts and rewrote a few odd phrases so they would flow better.  The rest of my essay, including the argument, I kept fully intact, feeling that as things stand now, major revisions are unnecessary and would hurt rather than help the essay’s success.

Big Brother: Bully or Benefactor?

Are the NSA’s Surveillance Programs Helping or Hurting?

 

Introduction

Though the National Security Agency was first established by President Truman back in 1952, it was only in the last decade that the public became aware of some of the details regarding the controversial agency. Recording and storage of Americans’ phone calls and forced compliance of America’s internet giants to turn over information are just a few of the reasons that have compelled people to stand up and demand an end to the spying. But do the NSA’s activities really endanger our freedoms, and if so, how? Would we really be better off with a dramatically cut-down version of the agency?

These are some of the questions I will explore in this essay. I will begin by exploring the negative effects surveillance can have on our society and personal privacy. I will then move on to the developments that brought about modern surveillance and its current limits. After that, I will discuss the benefits of voluntary and NSA surveillance and conclude with the solution I believe will be most effective and proper as well as some other currently proposed fixes. Through this essay, I will show my reasoning for allowing the NSA to remain active at what they’ve been doing, but with a new set of regulations in place to secure both privacy and security.

The Negative Aspects of Surveillance

In analyzing the negative aspects of surveillance, I will explore three different topics. Firstly, I will take a look at the mission of the NSA in relation to both what they claim, and what they are doing in actuality. Secondly, I will cover the weakness of phone and internet companies, and the internet as a whole, when it comes to orders from the NSA. And finally, I will explore what negative effects surveillance, and the fear of surveillance, can have on our private lives.

NSA Cons Poster

NSA Surveillance Con Poster by Rachel Moore, borrowed from behance.net

NSA Activities and Mission

When it comes to surveillance, the NSA’s powers are most thoroughly regulated and limited by the Federal Intelligence Surveillance Act of 1978 (FISA) passed in the aftermath of the Watergate Scandal. In FISA, the NSA’s mission is set as collecting “foreign intelligence information” which includes “information with respect to a foreign power . . . that relates to . . . the conduct of the foreign affairs of the United States.” [1] It may seem a reasonable limit, but it can be interpreted as encompassing something far more expansive that what it appears to. Even taken at face value, the NSA’s mission goes far beyond counter-terrorism, the reason commonly provided to the public. For example, in 2008 Christopher Bond, the lead sponsor of the FISA Amendment Act (FAA) claimed, “There is nothing to fear in the new bill, unless you have Al Qaeda on your speed dial.” [1] However, though the reason behind the FAA’s expansion of NSA powers may have been counterterrorism, it wasn’t the only operation that was expanded. As legal scholar Marty Lederman explained, “There is nothing to fear in the new FISA bill unless you make international phone calls or e-mails that arguably implicate the federal government’s national security, foreign affairs, or law enforcement interests.” In other words, anything to do with America’s foreign affairs as related to a foreign nation in any way is fair game for NSA surveillance. But the term foreign nation also isn’t always interpreted to exclude the U.S. For example, when the data-gathering and analysis takes place overseas, American information can be considered “foreign intelligence” using the loose definition in FISA and Executive Order 12333. [2] In its current form, the NSA has power and authority to collect much more than counter-terror information, indeed there seem to be very few limits as to what they can collect.

The Fourth Amendment to the U.S. Constitution guarantees that “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.” However, when it comes to intelligence gathering, the bar appears to have been lowered, and the need for warrants or probable cause ignored, replaced with “reasonable cause.” Though FISA requires warrants in order for the gathering of intelligence on American citizens, John Yoo, serving under the Bush Administration in 2001, “argued that the President did not really need to go through FISA’s warrant requirements at all, and could even conduct a warrantless search as long as it was ‘reasonable’.” [3] In fact, Yoo wrote that “a warrantless search can be constitutional ‘when special needs, beyond normal need of law enforcement, make the warrant and probable-cause requirement impracticable.’” [3] The problems with this are obvious. If “reasonableness” has become the new standard for the validity of surveillance, then nothing appears to be off limits if it can be construed as “reasonable” to do so in the interest of national security. If warrants are no longer required even from the FISA court, with its flexible rules regarding “foreign intelligence,” the NSA would have nearly unlimited power to pursue any line of investigation without warrant or probable cause, so long as they could prove it was “reasonable.” [3]

The collection of data on individuals alone is a difficult task, requiring intensely targeted searches. The NSA solves this problem with a concept known as “data-mining” where vast swaths of information taken from the internet or telecommunications are recorded and stored for later analysis. While this process makes it significantly easier to find suspicious activity by sifting through the gathered information, it also has the unfortunate side effect of gathering up completely unrelated information on ordinary law-abiding citizens. This kind of information gathering method would not be feasible using the old rules of FISA, which required warrants to look at every individual that intelligence is gathered from. The “incidental” interception of information on someone the search was not directly targeting cannot be legally analyzed within the FISA framework, even if the gathered information raises a red flag. Probable cause would be required to pursue further inquiry, but since the incriminating information was not of an explicitly targeted individual, it cannot be used to define probable cause. [4] The FAA places no such restrictions on data mining, allowing information and communications of innocent citizens to be gathered up along with the targeted information of terrorists. So long as the process of surveillance is able to target an individual, it is no longer required that all the information required in the process is focused on the target. [5]

Weaknesses of the Internet and Telecommunications

The Fourth Amendment, in theory at least, should be sufficient to hold back and limit government surveillance. However, what the Fourth Amendment doesn’t protect against is data collection by corporations. [3] Every day, massive amounts of information is given up voluntarily by America’s citizenry to our internet providers and phone companies. And while the government is forbidden from accessing our private information directly, there is nothing stopping them from demanding that private companies turn it over. In fact, the PRISM program set up in Section 702 of the FAA allows the NSA to enlist the compelled cooperation of companies such as Google, Yahoo!, Microsoft, Apple, and Facebook to retrieve personal information on their users. [6] Though some companies like Google have attempted to fight to keep the information private, and have at least succeeded partially in limiting the data gathering, internet companies are still compelled to cooperate when a National Security Letter is presented. [7]  And when the NSA comes knocking, the networks are already set up to allow ease of access for government surveillance thanks to the Communications Assistance for Law Enforcement Act of 1994 (CALEA.) [7] The argument behind the NSA’s gathering of private information in this manner is that, if you voluntarily gave it to a company, then it is no longer private. The Supreme Court did, however rule that there was a limit to this. Things like private phone conversations or e-mails couldn’t be considered public information because they were voluntarily given up, however the phone numbers you dialed and the e-mail addresses you sent messages to could. [3] Still, whenever the NSA wants to obtain private information, the internet’s corporations are compelled (whether they want to or not) to provide it.

Effects of Surveillance on our Privacies and Liberties

A key phrase when it comes to the opposition of NSA surveillance is “violation of privacy.” But is a “violation of privacy” any more specific a term than “reasonable cause” used by the NSA for its own purposes? And how does a violation of privacy cause noticeable harm other than indignation that our private records have been viewed by others? Neil M. Richards argues in Dangers of Surveillance that there are noticeable negative effects caused by surveillance, chiefly a threat to decision-making and an imbalance of power. [8] I’m inclined to agree with his arguments. Firstly, an average individual makes their most important decisions in what they would consider privacy, where they are mostly free from the influences of the mainstream and the need to conform. Good discussion also tends to take place when not under the all-seeing eye of the public. But when under scrutiny, the average person tends to make decisions based on the group consensus or what is considered “normal.” When we are being observed, or fear we are being observed, our decision-making process is significantly hampered by the need to repress deviant opinions. A second way that surveillance can hurt us is that it upsets the balance of power between the watcher and the watched. If it’s recognized that information is power, then it’s reasonable to believe that information gathered by one party on another can potentially grant power over the second party to the first. Even if the information gathered reveals nothing illegal, if it is of an embarrassing nature the mere threat of disclosure can influence the person watched, “[giving] coercive power to the watcher.” [8]

Modern Surveillance’s Development and Current Limits

Until recently there were no explicit guidelines regarding the NSA’s surveillance of the internet other than the general rules regarding privacy violation set out in FISA. But that was due to the fact that the internet was virtually nonexistent in 1978 when FISA was passed. Private technology has come a long way since then, and surveillance technology has followed alongside as best it could. Consider the advancements in communications in the past century alone. In a relatively short span of time we’ve gone from written letters, to party-line telephones, to personal telephones, to cellular phones enabled with texting and e-mail. [9] In many ways, our privacy has increased thanks to these new technologies. Letters can be read, phone calls overheard, and our e-mails intercepted, but as the technology level of the mediums advance, the process of surveillance becomes more difficult. It is significantly harder to piece together data packets than it is to wiretap phone lines than it is to open a sealed letter. And as we’ve become better and better at hiding information, the government’s surveillance programs have struggled to keep up. [9] Surveillance can be considered something that increases our transparency, which rightly causes us alarm, but what we often don’t take into account is the increase in opacity our modern technologies have granted us. So while the NSA’s modern surveillance technologies such as data-mining may seem overly intrusive to us, their real purpose is to level the playing field back to what it was when the agency was started.

Even so, under FISA no intentional surveillance of Americans, unless they were suspected of being a foreign agent, was allowed. The Protect America Act of 2007 (PAA) expanded the NSA’s powers of surveillance, so long as the “‘significant purpose of the acquisition’ [was] the ‘obtain[ment] [of] foreign intelligence information.” [5] The PAA was later allowed to expire until the passage of the FAA in 2008 which set new standards for domestic surveillance. Any surveillance the NSA undertook had to be targeted at a person overseas, the purpose of the search had to be obtaining foreign intelligence, and surveillance was not permitted if the true purpose of the search was to obtain information on a related person in the U.S. [5] Though the FAA is far from perfect, and allows unregulated data-mining, it did successfully put in place regulations that would at least limit the collection of American information, and declare purposeful collection of it to be illegitimate. In fact, the majority of information gathered using methods like data-mining is never gone through. Though American information is unavoidably captured in sweeps of the internet, it is considered incidental to the task and up to 97% of it is discarded. [3] So the NSA may be capturing domestic information, but the scope and intent may not be quite as sinister as some believe.

NSA Pros Poster

NSA Surveillance Pro Poster by Rachel Moore, borrowed from behance.net

The Benefits of Voluntary and NSA Surveillance

In our society today, we often submit and agree to what is known as “liquid surveillance.” [8] Things like Google Analytics, GPS trackers in our phones, and Progressive Insurance’s Snapshot tool are all examples of this. We agree to this kind of surveillance because we profit economically from it. [8] We get ads tailored to us, our phone can help us if we get lost, and we get lower insurance rates for being good drivers, all for giving up a piece of our privacy. Agreeing to government surveillance is harder, where we have difficulty seeing if we’re receiving any benefit from it at all. For the purpose of it is not to cause good things, but to prevent bad ones. And when bad events like terror attacks occur, the public is suddenly in favor of any way to prevent such things from happening in the future. As Jack Goldsmith argues in We Need an Invasive NSA, “When catastrophe strikes, the public will adjust its tolerance for intrusive government measures.” [10] While we may not be able to see the positive prevention effects surveillance is having, we can certainly see the terrible events that can take place when it fails to prevent them. Corporate entities too, tend to both love and hate surveillance. Take, for example, the New York Times, who consistently criticizes the NSA’s programs, yet praises the cyber-security benefits they provide; seemingly unaware that one relies on the other. [10] The benefits of NSA surveillance can be seen as prevention, be it of terrorism, cyber-attacks, or child pornography. [7] The question then raised is if the benefit of this prevention outweighs the costs of the incidental violation of our privacy.

Solutions

As I discovered throughout my research on this subject, surveillance as a whole, including NSA surveillance, has both benefits and costs. But for it to be both effective and accepted by the public, the two must be balanced. As it is, the current system is unbalanced, allowing too much room for abuse. In this segment of the essay, I will present two fixes I believe will help bring privacy and security back into balance, as well as the USA FREEDOM Act currently proposed to regulate the NSA.

The first step to take in reigning in the NSA is to define and protect the right to privacy. [3] Once privacy is formally defined as a right guaranteed to all Americans, any attempts to circumvent this right without justifiable cause will be greatly impeded. To remain effective, the NSA will still need a way to intercept the information they’re looking for, but without unnecessary invasion of everyday Americans’ privacy. This can be accomplished with regulated data mining, where the records that include information not relevant to the search will be entirely sorted by a computer looking for keywords, and only suspect communications will be analyzed. From there the NSA will be able to conduct a search based upon the suspect communications to determine probable cause. [4] All other, irrelevant information should be discarded. There’s no purpose in storing data on innocent Americans if it doesn’t help further the agency’s mission of gathering foreign intelligence.

The second way to rebalance security and privacy is for the NSA to be more open to the public. If the public is to support the NSA’s mission and programs, the organization must first prove that it can be trusted by disclosing more information about itself. [10] Any agency that relies on secrecy to be successful cannot disclose everything, of course, but at least they should reveal is enough to quell the public’s fears of unwarranted spying. And once the public is well enough aware of what is going on, informed changes can be put forth to make the NSA work better. Take, for example, what the Department of Homeland Security is doing to try to reduce public outrage. Using “community acceptance of technology panel[s]” [11] they have begun to gather public reactions to some of the new surveillance technologies the DHS is using. Taking public opinion into account, the DHS considers the effect their new programs could have before putting them into the field. [11] If the NSA were to do something similar, it could reduce public outrage when programs like the PRISM data mining are uncovered. It’s hard to be outraged at the reveal of something if it was open to the public all along.

With the last two possible solutions in mind, as well as some of the problems raised in the first section of this essay, I will now take a look at the proposed USA FREEDOM Act. What the FREEDOM Act is successful at is stopping the gathering of American phone and internet records, limiting and regulating the agency’s data mining, and allowing greater openness for the NSA’s corporate partners, as well as putting in place greater regulation on what authority the NSA has. [12] What the FREEDOM Act doesn’t address is the NSA’s encryption sabotage programs, surveillance of Americans outside of the country, and the excessive secrecy the agency is allowed due to the state secrets privilege. [12] While the FREEDOM Act may not address all the problems, it at least provides the beginnings of a solution and a jumping-off point to implement other improvements in the future.

Conclusion

In this essay, I’ve covered some of the problems presented by surveillance such as the NSA’s unregulated data mining and flexible authority, the weakness of companies and the internet to government intrusions, and the hampering of decision-making when we believe we are being watched. Also, I looked at how our advanced technologies have created greater privacy for us as citizens, the new regulations already imposed on the NSA by the FAA, and the fact that any information intercepted by the agency not relevant to the current search is incidental and unintended. Counterbalancing surveillance’s problems were the benefits they provide, such as the liquid surveillance we accept in our society and the prevention of terrorism, cyber-attacks, and the spread of child pornography. To balance security and privacy, I proposed two solutions: securing privacy as a right and lessening the secrecy that surrounds the NSA. Legislation currently in the works, like the USA FREEDOM Act, provide the first step in accomplishing these goals, and protecting both the security of our country, and the privacy of those who live in it.

Works Cited

[3]

Graves, Lisa. “The Right to Privacy in Light of Presidents’ Programs: What Project MINARET’s Admissions Reveal about Modern Surveillance of Americans.” Texas Law Review 88.7 (2010): 1855-904. EBSCO eBook Collection. Web. 29 Nov. 2013. <http://web.ebscohost.com/ehost/detail?vid=4&sid=cfd102f0-c092-4955-af39-19416ec9cabb%40sessionmgr112&hid=127&bdata=JnNpdGU9ZWhvc3QtbGl2ZQ%3d%3d#db=afh&AN=52545722>.

[4]

Taipale, Kim. “Rethinking Foreign Intelligence Surveillance.” World Policy Journal 23.4 (2006): 77-81. EBSCO eBook Collection. Web. 29 Nov. 2013. <http://web.ebscohost.com/ehost/detail?vid=6&sid=cfd102f0-c092-4955-af39-19416ec9cabb%40sessionmgr112&hid=127&bdata=JnNpdGU9ZWhvc3QtbGl2ZQ%3d%3d#db=afh&AN=28513028>.

[5]

Schwartz, Paul M. “Warrantless Wiretapping, FISA Reform, and Lessons of Public Libery: A Comment on Holmes’s Jorde Lecture.” California Law Review 97.2 (2009): 407-32. EBSCO eBook Collection. Web. 29 Nov. 2013. <http://web.ebscohost.com/ehost/detail?vid=8&sid=cfd102f0-c092-4955-af39-19416ec9cabb%40sessionmgr112&hid=127&bdata=JnNpdGU9ZWhvc3QtbGl2ZQ%3d%3d#db=bsh&AN=41034060>.

[6]

Guarino, Alessandro. “The State Vs. the People.” Engineering & Technology 8.10 (2013): 43-45. EBSCO eBook Collection. Web. 29 Nov. 2013. <http://web.ebscohost.com/ehost/detail?vid=10&sid=cfd102f0-c092-4955-af39-19416ec9cabb%40sessionmgr112&hid=127&bdata=JnNpdGU9ZWhvc3QtbGl2ZQ%3d%3d#db=bsh&AN=91664533>.

[7]

Shannon, Meg McGinity. “Private Lives.” Communications of the ACM 49.5 (2006): 23-26. EBSCO eBook Collection. Web. 29 Nov. 2013. <http://web.ebscohost.com/ehost/detail?vid=13&sid=cfd102f0-c092-4955-af39-19416ec9cabb%40sessionmgr112&hid=127&bdata=JnNpdGU9ZWhvc3QtbGl2ZQ%3d%3d#db=bsh&AN=20725023>.

[8]

Richards, Neil M. “The Dangers of Surveillance.” Harvard Law Review 126.7 (2013): 1934-65. EBSCO eBook Collection. Web. 29 Nov. 2013. <http://web.ebscohost.com/ehost/detail?vid=15&sid=cfd102f0-c092-4955-af39-19416ec9cabb%40sessionmgr112&hid=127&bdata=JnNpdGU9ZWhvc3QtbGl2ZQ%3d%3d#db=bsh&AN=87598612>.

[9]

Simmons, Ric. “Why 2007 Is Not like 1984: A Broader Perspective on Technology’s Effect on Privacy and Fourth Amendment Jurisprudence.” Journal of Criminal Law and Criminology 97.2 (2007): 531-68. EBSCO eBook Collection. Web. 29 Nov. 2013. <http://web.ebscohost.com/ehost/detail?vid=22&sid=cfd102f0-c092-4955-af39-19416ec9cabb%40sessionmgr112&hid=127&bdata=JnNpdGU9ZWhvc3QtbGl2ZQ%3d%3d#db=f5h&AN=25643758>.

[10]

Goldsmith, Jack. “We Need an Invasive NSA.” New Republic 244.17 (2013): 8-12. EBSCO eBook Collection. Web. 29 Nov. 2013. <http://web.ebscohost.com/ehost/detail?vid=25&sid=cfd102f0-c092-4955-af39-19416ec9cabb%40sessionmgr112&hid=127&bdata=JnNpdGU9ZWhvc3QtbGl2ZQ%3d%3d#db=afh&AN=90544943>.

[11]

Sarewitz, Daniel. “Word View: Defending Democracy.” Nature 465.7298 (2010): 546. EBSCO eBook Collection. Web. 29 Nov. 2013. <http://web.ebscohost.com/ehost/detail?vid=30&sid=cfd102f0-c092-4955-af39-19416ec9cabb%40sessionmgr112&hid=127&bdata=JnNpdGU9ZWhvc3QtbGl2ZQ%3d%3d#db=afh&AN=51147579>.

 

 

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