Is NSA Surveillance the Worst Ever Attack on Our Rights?

Almost all of the programs Snowden exposed are still in place: the only difference now is that people know about them.

Judge Thomas F. Hogan of the Foreign Intelligence Surveillance Court said the PRISM program goes “far beyond the purpose” of collecting data for foreign intelligence purposes.

The NSA’s surveillance programs are designed to induce people with the sense they are being surveilled at all times.

Because of these brash surveillance programs, the American people have become increasingly suspicious of the government.

In May of 2013, Edward Snowden rocked the world when he exposed the extent and seemingly malicious intent of government surveillance practices. In doing so, he renewed the discussion on how best to balance both government interests and rights, including the guarantee of the protection of privacy. To this day, almost all of the programs Snowden exposed are still in place: the only difference now is that people know about them. Before, the public was suspicious of government intelligence; now, Americans know they are being “watched.” It is natural to make comparisons between the current government of the United States and the nightmarish state conjured by George Orwell in 1984, which tracks and records the every move of its people. I think it is useful in evaluating the advantages and disadvantages of the program to acknowledge that much of the debate rests on suspicion: suspicion between the people and their government and suspicion between the government and its people.

First, let’s take a look at the NSA’s most prominent surveillance programs. Understanding these programs is helpful in appreciating the means by which the NSA manages to collect the information of hundreds of millions of people.

PRISM- The NSA calls PRISM “Our #1 Source of Raw Intelligence.”  Under this program, the NSA can extract information from the servers at nine major technology companies:  Facebook, Microsoft, Yahoo, Google, PalTalk, AOL, Skype, YouTube, and Apple. Established in 2007, this intelligence program allows the NSA to track and collect essentially all communication and data stored on these forums:  photos, videos, online social networking activity, and e-mail, among others. Simply, one can assume that, under this program, every piece of data on these websites can be stored in a NSA data server and all activity on these sites can be monitored in real time.  Further, the data collected by the NSA can be shared with both the CIA and FBI.  Legal experts argue the program violates the 4th Amendment.  Judge Thomas F. Hogan of the Foreign Intelligence Surveillance Court said the program goes “far beyond the purpose” of collecting data for foreign intelligence purposes.

Upstream- According to Just Security, Upstream surveillance “consists of the mass copying and content-searching of Americans’ international Internet communications while those communications are in transit. The surveillance takes place on the Internet  “backbone” — the network of high-capacity cables, switches, and routers that carry Americans’ domestic and international Internet communications.  With the compelled assistance of telecommunications providers like AT&T and Verizon, the NSA has installed surveillance equipment at dozens of points along the Internet backbone, allowing the agency to copy and then search vast quantities of Internet traffic as those communications flow past.” Perhaps this program is even more extensive than PRISM, given its larger scale and a greater volume of communications being intercepted and gathered.

XKeyscore- Similar to Upstream, XKeyscore gathers information from Internet users on the Internet ‘backbone’ mentioned earlier.  Whereas Upstream focuses primarily on communication data, XKeyscore tracks and stores communication data as well as photos, videos, emails, and browsing histories, among other types of privately held data. XKeyscore takes Upstream a step further by establishing a private search engine that only the NSA can use:  it allows NSA analysts to use queries and other filters in order to access and sift through all of the information XKeyscore collects.  In turn, XKeyscore is arguably the most powerful surveillance system deployed by the NSA.

Make no mistake, surveilling the Internet is hard work.  The Internet is not limited to a finite space: it is a global network of networks that continuously grows in size and complexity every second. Yet, the NSA collects this massive amount of information out of the fear that they might miss something. Frankly, it seems the NSA works under the premise that it is better to be suspicious of everyone than to focus suspicions on select individuals.

So, why does the NSA do this?  The NSA claims these programs are part of a larger antiterrorism effort. But, given the scale these programs operate on, it seems natural to question the NSA’s motives. These programs inherently strengthen the power of the government by manipulating people’s behavior. The NSA’s surveillance programs are designed to induce people with the sense they are being surveilled at all times. As Michel Foucault explains in Discipline and Punish: The Birth of the Prison, keeping people curious is one of two ways for a government structure (like a prison) to consolidate and secure power: “the inmate must never know whether he is being looked at, at any one moment; but he must be sure that he may always be so.”

How are people responding? Because of these brash surveillance programs, the American people have become increasingly suspicious of the government. Internet users feel more inclined to react harshly to government surveillance, especially if they have done nothing wrong. In fact, as UC Davis School of Law Professor Elizabeth Joh explains, his is increasingly becoming the case. Recently, people have begun to push back and resist government surveillance.  There has been an uptick in what Elizabeth Joh calls “privacy protests” in response to the growing ability of the government to track, collect, and store people’s information. Joh gives several examples of these protests: “They buy “burners” (prepaid phones) or “freedom phones” from Asia that have had all tracking devices removed, or they hide their smartphones in ad hoc Faraday cages that block their signals. They use Tor to surf the Internet. They identify tracking devices with GPS detectors. They avoid credit cards and choose cash, prepaid debit cards, or Bitcoins. They burn their garbage. At the extreme end, some inclining towards living “off the grid” and cutting off all contact with the modern world.” Perhaps these protests run contrary to social norms, but because these individuals are going to great lengths to resist government surveillance, it speaks volumes about their suspicion of surveillance practices. However, little attention has been paid to these people who have taken action in response to an increasingly watchful government.

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Suspicion is the primary motivation behind each of the NSA surveillance programs:  keeping people suspicious also keeps them in check.  Equally, suspicion plays a vital role in the 4th Amendment: it gives a basic explanation for why police officers conduct a search and seizure of one’s property. As Joh says, “suspicion is a central facet of the police officer’s worldview.” Police officers, nonetheless, can only conduct a search and seizure ‘upon probable cause;’ otherwise, their actions are unconstitutional. Right now, our government is using these surveillance programs to conduct the largest search and seizure in the history of our country; in the process, they are violating the 4th Amendment right of millions of Americans.

Naturally, the debate between balancing privacy and security garnered significant attention after Snowden’s leaks.  While there is no amendment directly safeguarding one’s right to privacy, this right has been interpreted as existing implicitly in the “penumbra” of rights. (This reasoning is reflected in the majority ruling of Supreme Court cases such as Griswold v. Connecticut (1965)). However, those who advocate on behalf of security have a simple position: one ought not have anything to hide. Therefore, the vast collection of private information does not violate anyone’s rights. This position, for many, though, is unsatisfying.

As Daniel J. Solove points out in his work “Why Privacy Matters Even if You Have Nothing to Hide,” most security advocates make the assumption their information will be secure once collected by the government.  That is not necessarily true. The government faces problems safeguarding information and data it collects from its citizens.  Solove makes the point that this information, if leaked or stolen from the government, can be used to defraud, blackmail, or wrongfully profile citizens. He also discusses the aggregation of information, which is the fusion of small pieces of information into a more revealing story, and how it can harm individuals. By collecting small pieces of information and assembling them, the government “can glean information about us that we might indeed wish to conceal.”

NSA surveillance programs emerged out of reasonable fears about security, especially in post-9/11 America. The government has a valid interest in protecting the safety of its citizens and endeavoring to prevent future attacks such as those that took place on September 11, 2001. However, historically, states have inflicted tremendous harm on citizens when they become too powerful and too intrusive into the lives of their citizens. Respecting a right to privacy is an important bulwark against the tyranny of a government that has the potential to violate rights in the nominal interest of keeping its citizens safe.

One possible middle-ground solution was presented by Bruce Schneier during a lecture at  MIT when he proposed means by which suspicion of government might be curtailed. This effort would require collaboration between both citizens and their government. “’Transparency, oversight, [and] accountability,” says Schneier, “…is fundamentally how we secure ourselves when we have to give institutions power over us.” If the NSA could be more forthcoming and inform its citizens of its policies without the need for a whistleblower like Snowden and respond to reasonable critiques about the agency’s most intrusive practices, it is possible for the two parties to begin to mend a relationship driven by suspicion. The debate between security and liberty is likely inescapable and is a trade-off in any society; however, in the minds of many, the NSA surveillance programs have tilted too far towards prioritizing security, and it is, thus, necessary, to pursue a collaborative approach to restoring greater degrees of constitutionally-protected liberties.

Jordan Pruce is an undergraduate studying information science at Cornell University. Mr. Pruce is additionally pursuing a concentration in Information Ethics, Law and Policy, and Date Science with a focus on examining the legal and ethical aspects of how information is handled.

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