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Edward Snowden’s disclosure that the US Government, through the National Intelligence Agency, engaged in a secret private surveillance program on her citizens continues to stir serious debates on security, privacy, secrecy, and civil liberties. From the disclosure, several interest groups and individuals moved to court to question the constitutionality of the program that engaged in unchecked monitoring of all types of communications within and outside the US.
The Federal Government’s move to develop a secret database of such individual information without a setup of oversight and proper mechanisms of checks and balances infringes on the Bill of Rights, which forms the backbone of America’s constitution. This paper explores the implications of the surveillance on civil liberties and privacy laws as previously set out in the country. Likewise, the paper seeks to understand the associated arguments on the program and the core drivers needed in implementing this program.
Roles and responsibilities of NSA
Security agencies in the US, National Security Agency/Central Security Service (NSA/CSS), are responsible for analysis of signal intelligence and information conveyance platforms and services to protect the country from intrusive aggression under all circumstances.
NSA, therefore, provides a system for proper counteraction of security threats before executions within and outside the US. NSA performs these functions in consistent with the rules and regulations governing the protection of private and civil liberties of the Americans (United States National Security Agency 12).
As the chief executive of the agency, a director remains responsible for the collecting, processing, analyzing, producing, and disseminating signal information and data for international intelligence and counterintelligence for supporting both local and international missions.
Similarly, the custodian of this position acts as the sole custodian and manager of National Security Systems within the confines and regulations of related laws. Without prejudice and malice, the head of NSA helps the government in prescribing security regulations in relation to transmission and distribution of information signals for oversight and supervisory roles (United States National Security Agency 13).
NSA Core Values
Sworn in individually, though working as a team in many capacities, employees of NSA draw inspiration from the doctrines of integrity, transparency, accountability, and respect for law. Working for the good of America remains the greatest slogan in NSA with employees committed to advancing the rights, goals, and values of the nation. Likewise, NSA remains committed to strict adherence to the spirit and regulation within the Constitution and related laws and regulations (United States Privacy and Civil Liberties Oversight Board 14).
Origin of the debate
Close analysis of the core values, roles, and responsibilities of NSA shows clear indication that the institution is set out to protect and safeguard the Americans from adversaries within and outside the country. Their commitment to service the nation and reaffirmation on upholding the Constitution and related laws sets out NSA as a noble institution.
The Constitution, whose backbone is the “Bill of Rights,” needs maximum protection at all cost. The motive of surveillance must come into place with regulated and checked systems of “checks and balances” within the execution of the roles. Civil liberties are “hard-fought” freedoms whose institutionalization took several years, thus control and surveillance at all costs require prerequisite oversights lest the hard-earned liberties extinct (Jarvis par. 6).
Edward Snowden raised three basic questions on his disclosures of the NSA’s surveillance. Question on the moral and legal standing of the government’s collection of such extensive files arose. Similarly, Snowden queried the inability of the government to disclose the collected information taking into account the fact that such “data” became “public” immediately after government’s collection. The government’s failure to disclose to the public their “intended” surveillance also raises question on the sincerity of the program.
Even though these questions seem simple with outright answers, developing an amicable answers continue to elude the security and law elites in America. Most scholars argue that all governments, “even those that respect right to privacy” engages in some form of “necessary surveillance” on her population for “security reasons.”
However, the authenticity of such security reason call for access to such “metadata” – the details of phones contacts, the number of calls made, recipient of such calls, and the timing and duration of such calls, and other forms of information based on court orders with defined legal course. Question also arises on the productivity of the program once the government makes its motive public. The likelihood of public outcry and intentional “public sense of fear” may send the program to its knees (Liptak and Schmidt par. 8).
Previous federal court judgments found the program “necessary” even though some judges term it as “Orwellian.” The inability of judicial, presidential committee, and several stakeholders engaged in the development of the program to reach a consensus on the real course of the program continue to rock the legal battles over the program.
The likelihood of a Supreme Court battles remains high as federal courts continue to rule in the favor of the program albeit with “signs of reservations” on the infringement on civil and privacy liberties (Liptak and Schmidt par. 9).
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Even though the presidential review committee and federal court judges find the program legal, Judge Richard Leon thinks the same albeit with reservations. Despite ruling in favor of the program, Pauley ruled in favor of the program even though he cited some form of “unconstitutionality” in the institutionalization of the program.
This comes after Judge William Pauley III ruled in favor of the program despite questions that petitioners forwarded on the intelligence value of the program, infringement on civil and private liberties, and the role of The Supreme Law – the Constitution in the whole program (Liptak and Schmidt par. 10).
In his ruling while supporting the program, Judge Pauley revisited the September 11 attack stating how laxity and inadequate analysis of call to and from Khalid al-Mihdhar, one of the plane hijackers, led to the execution of the attack. In this anecdote, Judge Pauley whose office lies a few blocks from the World Trade Centre claimed that NSA’s “inability to capture al-Mihdhar’s telephone numbers led to the wrong conclusion that his calls came from outside the US soils while in reality the call came from San Diego.
In his argument, therefore, as Liptak and Schmidt (par. 11) present, NSA capturing the telephony metadata from al-Mihdhar’s communication schedule presented “could have presented” the Federal Bureau of Investigation with the intelligence that al-Mihdhar was making calls to a Yemini safe house while in San Diego.”
Judge Leon, on the other hand, in his analysis of the program, claims that the government failed to justify the course of the program through effective presentation of evidence on the importance of “tapping” communication gadgets of the Americans.
In his argument, he claims, “the government does not cite a single instance in which analysis of the NSA’s bulk of metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive in nature” (Liptak and Schmidt par. 14).
The presidential group seems to take a middle ground on the issue. With the aim of maintaining a balance between supporting the program and upholding the constitutionality of the program, the team “believes that at least on a few occasions” the program counteracted “would-be” security attacks on the US citizens and some parts of the world.
However, the team suggested that intrusion into the privacy of the American citizens “was not essential to preventing attack,” thus the need for less intrusive measures. In case the government seeks to acquire details of individual telephony metadata, they must get court orders. In this recommendation, the presidential review team seems to acknowledge the fact that the program infringes on the civil and privacy rights (Liptak and Schmidt par. 15).
The constitutionality of the program also raises questions with the judges offering opposite arguments over the issue. Judge Pauley, in his argument claims that the program is legal and constitutional even though he acknowledges the discussions going on at different levels over the program. In his statement he claims, “while robust discussions are underway across the nation, in Congress and at the White House, the question for this court is whether the government’s bulk telephony metadata program is lawful.”
He goes further to reaffirm that “the court finds it is.” The constitutionality debate borrows widely from the 1979 Smith versus Maryland case in which the court rules that a robbery suspect lacks adequate reasons to claim privacy to the phones calls made. The court argued that once the call reached public domain, they no longer harbored privacy rights since they had reached third party status.
As Judge Pauley puts it, “Smith’s bedrock holding is that an individual has no legitimate expectation of privacy in information provided to third parties.” Judge Leon, on the other hand, takes the argument to technological advancements. He argues that the state of communication data in 1979 remains far much below the telephony metadata contained in communication systems in 2014 (Liptak and Schmidt par. 17).
The arguments about this program entail close analysis of the roles of NSA in protecting the bill of rights and ensuring security. Complaints from the public oversight groups draw inspiration from the “privacy” of the program. This implies that there is need for an independent oversight program for checking the progress of NSA in implementing this program.
Building on efforts to filter and analyze the upstream communication to prevent collection of purely domestic informations becomes important. Markedly, carrying out this in consultation with the various telecommunication service providers helps assessing the filtering techniques applied in upstream collection in consistency with government’s desire to collect only authorized and susceptible information (Van Buren par. 3).
In order to live up to the public expectations, NSA need to develop adequate structure of ensuring transparency and accountability in the information collected. Based on the minimization procedures, NSA requires a system of publicizing the redacted and declassified versions of information in order to win public trust on the use of collected information.
Notably, developing adequate public trust will ensure access and collection of information within the public and private domains goes well with the demands and stipulations of the Bill of Rights.
Jarvis, Jeff. The primary NSA issue isn’t privacy, it’s authority. 2013. Web.
Liptak, Adam and Michael Schmidt. Judge Upholds N.S.A.’s Bulk Collection of Data on Calls. 2013. Web.
United States National Security Agency. NSA/CSS Mission, Vision, 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.