Wednesday, November 6, 2013

The NSA is out of Control Spying on Americans



The NSA has abused the rights of the citizens by illegally intercepting, storing and reviewing their private communications.  The NSA has been secretly granted authority to collect data (defined as voice and electronic information traveling across the Internet) through the Patriot Act in October of 2001.  In March of 2004, a Justice Department review declared that the collection of this data was illegal.  The program was then suspended for some time.  In 2007 the program was authorized to re-start.  Trouble erupted in 2009 when the Justice Department acknowledged that they had collected telephone and other electronic data in a way that exceeded legal limitations.  Later, in October of 2011, the Foreign Intelligence Surveillance Court (FISA) “ruled that the NSA violated the Fourth Amendment at least once” (Lee, 2013).  The ruling associated with the October 2011 violation is secret so specific facts about the ruling are unknown, however many suspect that the NSA defeated some aspect of the minimization rules (Lee, 2013).
            The NSA not only illegally intercepts and secretly stores the telephonic and electronic data of people in the United States, it also requests that companies like Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype YouTube and Apple provide personal information through the use of court orders (Lee, 2013).  Individual users of these programs who have configured their account to restrict access have no way of knowing that their data is being intercepted and analyzed.  This illegally collected data is accessed illegally and may be used against them without their knowledge. 
            The collection of information from these companies has potentially injured their reputation by their users who expect them to protect their data and respect their privacy.  This information has only recently become public.  Facebook has fought off the notion that they had a choice on whether to provide the data, have made public attempts to assure their flock that they have acted responsibly and that they have been vigilant in requests to the government to publicize the activity. Their newsroom report states that they have urged the government “to allow companies to divulge appropriate information about government orders and requests that we receive, in a manner that does not compromise legitimate security concerns” (Ullyot, 2013).  Facebook pledges that they will vigilantly protect their users’ data but also states that they have complied with between 9,000 and 10,000 requests from all government entities between June and December of 2012 (Ullyot, 2013).
            It’s time to look back at this secret activity being handled by the NSA and see how this activity is in direct violation of the Bill of Rights.  The activity violates the First Amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech…” (The Bill of Rights).  The collection of data has prohibited our exercise of free speech by collecting and examining the data.   The First Amendment continues to prohibit the restriction of a citizens ability “…to petition the Government for a redress of grievances” (The Bill of Rights). Normally citizens can challenge statutes for constitutionality in court however the activity of the NSA comes from a secret law that cannot be challenged in court.  Furthermore, the FISA court is not a real court; it is an administrative body that listens only to the government and operates in total secrecy. 
            The Fourth Amendment prohibits warrantless search and seizure.  The NSA does not obtain a warrant which would mandate the accused appear before a federal judge.  The process is secret and does not allow the accused an opportunity to represent himself.  In addition, the NSA is permitted to provide only vague assertions that do not demonstrate that the target is a spy, terrorist or any other sort of criminal (Sullum, 2013).      
            The Fifth Amendment is violated because citizens are not provided protection against self-incrimination.  The NSA saves and uses evidence they collect, presumes guilt then investigates.  The individual does not even know he is being investigated.  The Fifth Amendment states “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury … nor shall be compelled in any criminal case to be a witness against himself, nor be  deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation” (The Bill of Rights).  The NSA’s collection and processing violates the Fifth Amendment.
            The collection and use of data is a violation of the Sixth Amendment as a target is not allowed to confront the NSA and has no right to trial. The Sixth Amendment states that the accused shall “be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence” (The Bill of Rights).  The practice of the NSA does not permit an accused person to even know that he is being observed and analyzed.  
            The Ninth Amendment, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” prohibits the government from restricting freedoms that are not explicitly restricted by the Constitution (The Bill of Rights).  The government may not declare privacy a non-right, which is what they are doing.
            The NSA is permitted to intercept communications if at least one part of the conversation is outside the United States.  Since the requirement specifies that the discrimination occurs, the NSA is allowed to retrieve bulk information then it must sort it out to remove disallowed information.  In some cases this determination cannot be made without the intervention of a human analyst (Lee, 2013).  Interestingly, this counters allegations that the metadata collected is analyzed using a mathematical formula, not through the use of human intervention (Saletan, 2013).  When communications are analyzed by humans there is great potential for illegal activity including the ability to plant evidence or wrongly accuse an innocent person. 
            How many lives or potential terrorist attacks have been prevented by the illegal search and seizure of the information by the NSA?  During the House Intelligence Committee on June 18, 2013, General Alexander said, “The information gathered from these programs provided the U.S. government with critical leads to help prevent over 50 potential terrorist events in more than 20 countries around the world” (Elliott & Meyer, 2013).  The NSA has been able to substantiate the truthfulness of only four threats of the 50.  Of the four known instances where the NSA data was used to solve crimes none relied exclusively on NSA data to solve the case.  In the case of Basaaly Moalin who was convicted of sending $8500 to Somalia, used to support the terrorist group that bombed a mall in Kenya, the case could have been solved by simply getting a court order to retrieve the phone records in question.  The case involving Chicagoan David Coleman Headley who helped plan the 2008 Mumbai terrorist attack used tips from British Intelligence to solve the case.  The case of Najibullah Zazi, the man who plotted to bomb the New York subway system, did not require the warrantless powers of the NSA to find him.  The FBI has authority to monitor email accounts of known terrorists, which they had been doing.  The last case involving a plot on the New York Stock Exchange did not result in prosecution (Elliott & Meyer, 2013).  These cases may cause legal problems for the United States when those accused file lawsuits.
            The collection processes are illegal and they disregard the protections afforded to Americans in the Bill of Rights.  The unrestricted collection of data has not been demonstrated to actually prevent terrorism or other crimes.  The policy was created and executed secretly without disclosing information to the American people.  The founders of our country must be spinning in their graves.  The authority of the NSA to illegally collect data must be reversed and controlled.
                            
 
References
Elliott, J., & Meyer, T. (2013, October 23). Claim on “Attacks Thwarted” by NSA Spreads Despite Lack of Evidence. Retrieved from Pro Publica: http://www.propublica.org/article/claim-on-attacks-thwarted-by-nsa-spreads-despite-lack-of-evidence
Lee, T. B. (2013, June 12). Here’s everything we know about PRISM to date. Retrieved from The Washington Post: http://www.washingtonpost.com/blogs/wonkblog/wp/2013/06/12/heres-everything-we-know-about-prism-to-date/
Saletan, W. (2013, June 6). Stop Freaking Out About the NSA. Retrieved from The Slate: http://www.slate.com/articles/news_and_politics/frame_game/2013/06/stop_the_nsa_surveillance_hysteria_the_government_s_scrutiny_of_verizon.html
Sullum, J. (2013, November 1). Jacob Sullum: Broad spying law worthy of scrutiny. Retrieved from Omaha World Herald: http://www.omaha.com/article/20131101/NEWS08/131109960/1677
The Bill of Rights. (n.d.). Retrieved from http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html
Ullyot, T. (2013, June 14). Facebook Releases Data, Including All National Security Requests. Retrieved from Facebook : http://newsroom.fb.com/News/636/Facebook-Releases-Data-Including-All-National-Security-Requests

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