The growing need for security goes hand-in-hand with the demand to access data by the government in a bid to thwart potential criminal activities, including terrorism. However, the government also assumes the responsibility of ensuring that it does not violate people’s privacy in the course of accessing and using such data. Recently, the United States has experienced a fierce debate concerning the National Security Agency’s move to monitor the Americans’ communications secretly.
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In a report made by the Privacy and Civil Liberties Board, ten recommendations were made in a bid to protect citizens’ privacy and civil liberties (“National Security Agency” 8). Based on the argument that some of the features of the NSA’s surveillance program raise privacy violation questions, the board’s recommendations cannot alleviate Jeff Jarvis’ fears of how the government might end up using personal communication data.
The NSA works with other data service providers to ensure the safety of sensitive and classified information in relation to national security. Apart from preventing foreign antagonists from accessing the country’s security information, the NSA works with warfare agencies to counter terrorists both within and outside the United States. However, the NSA must work within the country’s legislation to avoid the breaching of the civil liberties and privacy entitlements as guaranteed by the Constitution.
From the article, Judge Upholds NSA’s Bulk Collection of Data Calls, the judges upheld the legality of the NSA’s program charged with the collection of mass phone records (Liptak and Schmidt par.8). However, the court ruling attracted contradicting opinions from different judges in Washington and New York. Judge William Pauley’s decision contradicted Judge Richard Leon’s decision with reference to the 4th Amendment.
According to Leon, the government’s use of advanced technology to construct information from countless records entailed unreasonable search that violated constitutional provisions, as highlighted in the 4th Amendment. On the contrary, Pauley held that the collection of mass data is not featured in the provisions of the 4th Amendment.
Thus the move does not violate it (Liptak and Schmidt par.12). With technological advancement in recent times, the government can use information, such as date of publication and the author’s name, among other specifications to access the intended data.
From Jeff Jarvis’ stance, the NSA debate regards authority, as opposed to privacy concerns. Jarvis supports Judge Leon’s claim concerning illegality in connection with the collection of mass communication metadata (par. 9). However, Jarvis is quick to note that the debate should revolve around what the government is authorized to do with the information at hand and agencies responsible for keeping an eye on the information (par. 6).
The author further highlights that the 4th Amendment, as invoked by the two judges, refers explicitly to the controlling authority (Jarvis par.7). According to Jarvis, privacy entails the independence of belief and against self-incrimination, as highlighted in the 4th and 5th Amendment, respectively (par. 8). With reference to these amendments, Jarvis regards metadata as public because some of its aspects are within reach of third parties (par. 8).
However, with publicity, it entails the extent to which various aspects of data are known to a third party and other members of the public. With the publicness of metadata, Jarvis suggests that access to such data by the government should not lead to the violation of the citizen’s privacy (par. 8).
With reference to the recommendations made by the Privacy and Civil Oversight Board, the focus is on addressing privacy concerns on the authority with regard to accessing data and intelligence for maintaining national security. The first recommendation targets the revision of the NSA’s procedures with reference to the determination of the value of foreign intelligence and the need for a documented explanation.
Foreign intelligence entails intelligence and information in connection with the capabilities, activities, and intentions of foreigners, states, or terrorist groups in relation to security, defense, and international affairs. From this definition, one can depict foreignness as the extent to which information is accessed by the government related to foreign countries or external organizations and groups (“United States Privacy and Civil Liberties Oversight Board” 18).
Jarvis’ concerns focus on the authority as opposed to addressing privacy concerns (par.11). However, with reference to this recommendation, the board focuses on ways in which the executive counters terrorism, whereas adhering to the constitutional provisions in relation to civil liberties and privacy.
The board insists that the surveillance must focus on the determination and the purpose of foreign intelligence. The board further recommends the expansion of the NSA’s procedures for the identification of foreign intelligence purpose and foreignness determination.
With the second recommendation targeting the United States person’s queries, the board advised on regular updating of the FBI’s minimization procedures. The minimization procedure details the process adopted by the NSA in the collection of data targeting non-American citizens. However, such processes should be within the foreign intelligence powers, and the agency should adhere to the constitutional provisions with reference to minimizing data collected on the United States’ citizens and residents.
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In addition, the board focused on the implications of section 702 information with reference to maintaining privacy and civil liberties (“United States Privacy and Civil Liberties Oversight Board” 22). Although the board members differed on the nature of limitations to be implemented, the proposal had nothing to do with controlling the powers of the government. In the course of thwarting terrorism, the government can act outside the limitations in disguise of strengthening its measures to restore national security.
Such a move is an indication of the FBI’s non-hypothetical focus on non-national security matters. Nevertheless, the third recommendation focuses on the development of a documented guidance for the security agents and analysts for them to meet the standards for the minimization procedures.
Under this recommendation, the board restricts the NSA and the CIA from accessing communications obtained under section 702 in the absence of valid reasons in connection with foreign intelligence (“United States Privacy and Civil Liberties Oversight Board” 23).
Jarvis’ argument highlighted the need to control the government’s authority and that of the agencies in contact with the data or information (par. 5). With the narrowness pertaining to the FISA’s requirements in connection with gaining information associated with the United States’ citizens, the government can use the executive orders to act outside the set specifications.
However, the fifth recommendation that requires the government to make submissions to the FISA court in a bid to enhance periodic certification controls the government’s authority. Under the guidance of the Attorney General, the board compels the government to adhere to the minimization procedures. Such a move will subject the government to abiding by its representation in the FISA court.
However, with the recommendation relying on the FISA judges’ and advisors’ decisions and influence, their conclusions may be influenced by the fact that they are dealing with the highest authority, viz. the government. Furthermore, with the rapid rotation of judges and advisors, attrition comes in, thus undermining the government’s efforts to comply with the program’s requirements.
With the upstream and about the collection, the government has the authority to obtain communication directly from the Internet service providers. Such a move highlights ways through which the government uses metadata to tap communications and intelligence in relation to the target persons. Compelling network providers to provide information highlights the possibilities of both the government and the Internet providers interfering with the privacy of the targeted persons.
With other recommendations focusing on periodic reviews, transparency, and recommendations, the board focuses on addressing privacy as opposed to controlling the government’s authority and powers of the people to access to metadata (“United States Privacy and Civil Liberties Oversight Board” 26).
Furthermore, these recommendations revolve around advocating the legality of NSA surveillance. However, the board should have recommended public vetting of the NSA’s actions for people to determine whether the program is legal.
Furthermore, the NSA’s move to collect an individual’s metadata entails the use of the government’s authority and powers to violate the 4th Amendment’s provisions with reference to privacy. Furthermore, such a move by the government and NSA seeks to undermine the constitutional checks and balances that control the activities of the authorities and other agencies (Van Buren par.19).
According to Jarvis, the NSA debate revolves around the government’s authority in handling what it knows, coupled with persons overseeing the information, data, or communications (par.7). However, the judiciary has moved out of this context, and it focuses on the ways in which NSA can adhere to privacy and the citizens’ civil rights, whereas providing intelligence for boosting national security.
From the recommendations detailed in the Civil Liberties Oversights Board’s report, it is evident that they focus on addressing privacy as a means of justifying the legality of the NSA program. From the recommendations, it is evident that the board’s recommendations cannot alleviate Jeff Jarvis’ fears on how the government might end up using personal communication data in the United States.
Jarvis, Jeff. “The primary NSA issue isn’t privacy, its authority.” The Guardian 2013. Web.
Liptak, Adam, and Michael Schmidt. “Judge Upholds N.S.A.’s Bulk Collection of Data Calls.” New York Times 2013. Web.
National Security Agency: NSA/CSS Mission, Values. Washington: GPO, 2009. Print.
United States Privacy and Civil Liberties Oversight Board: Part 6 of the Civil Liberties and Privacy Oversight Board Report. Washington: GPO, 2014. Print.
Van Buren, Peter. 10 Myths about NSA Surveillance that Need Debunking 2014. Web.