Given the recent furor concerning technology-enabled surveillance operations, it is important for us to understand the controversy underlying these covert affairs. These operations have questionable constitutionality under the Fourth Amendment clause about warrants, and are problematic due to the use of broad language, thereby fueling the potential for abuse. Being informed of these essentials of the controversy is crucial in order to be better equipped in demanding reform.
The Fourth Amendment puts forward the strongest case in support of addressing the NSA’s invasion of privacy given its more specific stipulations. It essentially creates the reasonable expectation of individual privacy by guaranteeing the right to secure “persons, houses, papers, and effects against unreasonable searches and seizures”, as well as setting the probable cause requirement for warrants to allow any searches. In fact, the only exceptions to bypassing these requirements are immediate threats to life, conspiracies to national security, or organized crime. With these reasonable exceptions, why is it such a controversial idea extending these protections to modern day technology? Indeed, several decades ago, wiretapping phone conversations had been ruled to require a warrant, yet courts have not extended the same requirement to modern day technologies. Arguably, if wiretapping phones requires warrants just like other forms of police activity, there is no reason that the stipulation for warrants should not be extended to modern day technologies. Critics may claim that it slows down the process for discovery, but it is a fair compromise to mass scale surveillance while balancing the need for individual liberty.
One of the key issues in understanding the controversy surrounding the NSA has to do with the fact that advancements in technology and social media has made gathering personal information a lot easier than in previous decades, which is why everyone is in a very vulnerable position.
The PATRIOT Act’s Section 215 is another major source for controversy, largely thanks to its extraordinarily broad language, permitting for bulk data collection operations by the NSA. The major source of controversy surrounding NSA operations stems from Section 215 which was enacted into law within the PATRIOT Act. Passed into law shortly after 9/11, that section allowed for the collection of phone metadata in addition to “e-mail, chats, photos, video, logins, and any other online user data”. Essentially anything that connects one to online data belongs to the NSA. This does not exclude phone metadata (such as the times of calls, phone numbers involved, or call durations). More importantly, it also includes any type of online data. Phone metadata and online data is extremely revealing about individuals in ways that go beyond identifying possible terrorist activity. It pervades and invades all facets of one’s life. This possible overreach of surveillance is made even more controversial by the fact that the same section has language that is open to interpretation. The government can request information without any warrant and only needs to state that certain information is relevant to an authorized investigation. Therefore, although the idea of probable cause is somewhat considered, the phrase relevant to an authorized investigation is not limited solely to matters of national security or organized crime, but could basically include any reason. This means if any other agency wanted to gain access to the vast trove of data collected by the NSA, they could very easily bypass warrant protections. Although not likely today, it currently is not prevented by current day law. The potential for abuse is extremely worryingly thanks to such broad language. Understandably, in light of recent leaks, Americans retain the right to remain hesitant over the legitimacy of such laws and sections that seem to conflict with the protections established in the Fourth Amendment.
The reputation and criticisms of excess power held by the NSA’s director is another source of controversy. With the immense amount of data collected by the NSA, one wonders whether accountability is possible. One former CIA official noted that, “We jokingly referred to [the NSA director] as Emperor Alexander…because whatever Keith wants, Keith gets.” The system of checks and balances in the NSA is thus called into question. However, to be fair, complete transparency is not entirely possible given the nature of the NSA’s operations. Regardless, it is essential to understand that this position can very easily have the potential for abuse if someone truly malicious were to assume the position of director. Hence, it would perhaps be fairer to the public, whose private information is at stake, to work towards the tightening of language to limit the prospect of abuse and overreach.
Fortunately, there has been some action in Congress to address the controversy surrounding the NSA, most of which deserves our attention. One piece of legislation that has gained much attention is the FISA Improvements Act of 2013, which is backed by our state’s senator, Diane Feinstein. This bill would includemodest reforms like regular reports to overseers and a limit to how long information can be held. However, this bill still poses a problem since it codifies “legal” continued surveillance, therefore not offering any significant genuine reform. Another popular bill known as the USA Freedom Act would potentially end the bulk collection of communication records, while “introducing a number of safeguards and reforms to the Foreign Intelligence Surveillance Act Court, which oversees the NSA”. This bill by comparison actually addresses domestic spying, but still is not perfect by any means. Essentially, it is important for Americans to be better informed regarding the essence of NSA reform legislation and pay careful attention to make sure genuine reform is brought about.
Although some legislation is being designed to address this controversial modern day issue, it is not entirely effective. Most importantly, resolving the controversy requires that our rights and liberties as individuals are protected. Otherwise, any attempt to establish greater accountability will be severely undermined.