Following the 9/11 disaster and the PATRIOT Act’s passage, the powers of the United States government to conduct surveillance on both citizens and foreign entities expanded dramatically. The Computer Crime and Intellectual Property Section was added to the Department of Justice, and the National Security Agency received substantially expanded purview for the stated purpose of combating terror. However, both before these measures were put into place and especially after the 2013 leak by Edward Snowden, questions arose about the rationality and constitutionality of these measures. The indiscriminate gathering of information about private citizens is presumably a violation of the Fourth Amendment, as there is no reasonable cause for doing so in an overwhelming majority of individual cases. This paper aims to define the problem and propose a solution that will respect the Constitution while enabling the government to fight cybercrime.
Under the current law, the gathering of private data by government agencies without a reasonable cause and an appropriate warrant is illegal in accordance with the Fourth Amendment. However, Snowden has revealed that agencies engage in such behavior, regardless, while the government aided and abetted them (Boussios, 2016). They use their lack of transparency, which is nominally intended to protect the nation’s intelligence interest and prevent the targeted criminals from learning that they are in danger. This same obscurity enables abuses of power by government agencies, and various stories from both the 20th and 21st centuries demonstrate that numerous agents in the government are willing to engage in such. Without whistleblowers such as Snowden, it would be nearly impossible to uncover such scandals, as more and more people would become involved and complicit upon learning of its existence.
However, there also exists another avenue for surveillance, one that has a more nebulous relationship with the Fourth Amendment. Brennan-Marquis (2017) discusses how large IT corporations, such as AT&T or various internet service providers, will collect users’ personal information and share it with the government voluntarily. Barring scenarios where data collection is happening illegally, users typically give their consent to such gathering, described in notoriously long and convoluted Terms of Service. As a result, the Fourth Amendment is technically bypassed, as the information was given away after consent was obtained, and the company gave it away freely, as well. With that said, the end result is the same gathering of data that is ripe for abuse, which is likely beyond most citizens’ expectations of privacy. Hence, this issue should also be addressed, as it addresses a loophole in the Constitution.
Lastly, it is necessary to consider whether mass surveillance achieves effects in cybercrime prevention that justify its existence. Per Boussios (2016), Snowden and other advocates for the elimination of surveillance allege that the programs are ineffective in achieving their stated objectives. The reason is that, while the state has the technology needed to gather massive amounts of information, few to no effective methods exist for analyzing it and deriving useful results. At the same time, the costs of the program, both economic and social, are massive, draining billions from the budget and reducing citizen trust in the government. It should be mentioned that future developments in big data technology may enable the analysis of such massive amounts of information. However, for now, the results achieved by surveillance have been underwhelming, particularly when compared to the abuses that were uncovered.
With the dangers and failures of mass surveillance taken into consideration, the conclusion skews toward restricting the practice. With that said, the secrecy requirements of fighting crime, both physical and informational, prevent the solution of increasing transparency from being reasonable. Snowden’s solution of increasing whistleblower protections, as described by Boussios (2016), may be effective, but first, a thorough review of the agencies involved in surveillance to uncover existing abuses is required. Additionally, it is necessary to consider the private company issue mentioned above. This paper recommends applying the same protections for this variety of data gathering as for seizures at government order, prohibiting agencies from accepting the information without reasonable cause. Overall, data gathering should only take place in the same circumstances as physical government searches and be subject to the same restrictions.
Mass surveillance has a strongly negative public image and a variety of negative implications that were explored by scholars and writers throughout the 20th and 21st centuries. Its dangers have been confirmed both within the U.S. government and internationally with various scandals that revealed government corruption. On the other hand, the risks of cybercrime and the effectiveness of private data gathering are less clear. The necessity of using surveillance-associated preventative measures for both cybercrime and terrorism does not appear to have been established over the nearly two decades of their use. As such, there should be little question of whether it is necessary to strike a balance between respecting citizen privacy and preventing crime. The Constitution takes precedence, and where its letter may be lacking, lawmakers and judicial bodies should respond by reinforcing its spirit to protect the integrity of the system.
References
Boussios, E. G. (2016). The “right” to privacy? – The debate over the United States government’s control over its cyberspace. Athens Journal of Law, 2(4), 211-224.
Brennan-Marquez, K. (2017). The Constitutional limits of private surveillance. University of Kansas Law Review, 66, 485-521.