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Do the NSA and CIA threaten civil liberties in the US?
Results so far:
| Yes | 69% | 201 votes | Total: 290 votes | |
| No | 31% | 89 votes |
Yes
by GCM
Created on: April 14, 2008
NSA's Data Gathering A Violation of the Fourth Amendment or Just Bad Policy?
The NSA is widely known to be gathering the following information on average American citizens in the area of email, internet, phones, financial, and airline information. Endnote 1. The information includes the following:
a) email- sender, recipient, subject heading, and time;
b) internet sites visited;
c) incoming and outgoing land line calls and cell calls;
d) financial information about bank accounts, wire transfers, and credit card use; and
e) airline information.
Endnote 1.
This unprecedented gathering of data represents a threat to our open and free society because it could dampen the average citizens willingness to share ideas and participate in politics. People who know thier every movement is being monitored by the NSA are less likely to share their thoughts and ideas. Without the openness an active participatory democracy cannot thrive.
In addition to being a threat to our demoncracy, many have contended that this unprecedented gathering of information also raises important fourth amendment constitutional questions. As discussed below, the fourth amendment as it is currently interpreted probably does not prevent the NSA from gathering this private data, making legislative action to halt the NSA program or to carefully monitor it all the more important.
Is the NSA's Data Gathering (not wiretapping) Done In Violation of the Fourth Amendment?
The answer is probably not. The fourth amendment protects our houses, persons, papers, and effects against unreasonable searches and seizures. Consistent with the Fourth Amendment, the government must demonstrate probable cause and obtain a warrant from a neutral judge. Endnote 2.
The Supreme Court has interpreted this fourth amendment to extend its protection to places where you have a reasonable expectation of privacy. Because it based on this notion of privacy, the fourth amendment does not protect information that you make freely available to the outside world. In the context the home, a person doesn't have fourth amendment protection for anything visible through an open window. A person also does not have fourth amendment protection for the trash he or she throws out, or for smells or sounds that leave the confines of the person's home.
In the area of telephones and email, Courts have found that telephone conversations and email messages are generally protected. Endnote 3. However, the external routing information (the telephone number called and the email addresses) is not protected. EndNote 4. The major difference between the content and the routing information is that you freely share that routing information with the world to make sure the telephone call gets connected or that the email is delivered.
At first glance, the NSA's gathering of information seems to fall outside the protection provided by the fourth amendment. The email and telephone numbers are information given that we willingly release to third parties to permit routing of our calls and email. The internet and financial information also represents data that we freely share with others to navigate the web or to purchase things in the market.
At second glance, the NSA's information gathering is different from other information gathered by the government on a piecemeal basis because it aggregates the information together. This aggregation and use of the information in ways no person would have anticipated may violate a person's reasonable expectations of privacy. While this should make a difference, the Supreme Court is probably more likely to find that the NSA's aggregation doesn't make a difference, reasoning that if the individual pieces of information can be obtained on their own, then aggregating them together does not make a difference.
Policy
Because the fourth amendment might not be sufficient protection, people must insist that a proper debate be had about what kind of information its government should be allowed to gather and retain on them. The current administration has done things behind closed doors, which should not be acceptable. Instead, it is time that we insist on a proper and open debate on the issue and that policy, and perhaps, the law change.
In the end, we should be striving for a change in government policy and the law. At the very least, if the NSA is going to allowed to gather and aggregate this data, it should only be given very limited powers to do so under unique circumstances that apply to a particular individual or group of individuals. It should also be given proper regulation and oversight to ensure that the rights of the individual are protected.
Endnotes:
1) Siobhan Gorman, NSA's Domestic Spying Grows As Agency Sweeps Up Data, Wall Street Journal, A1 (March 10, 2008), www.wsj.com.
2) U.S. Constitution, IV Amend.
3) Katz v. U.S., 389 U.S. 347 (1967).
4)Smith v. Maryland,442 U.S. 753 (1979); U.S. v. Forester, No. 05-50410 (9th Cir. 2007).
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No
by Jerry Curtis
Created on: October 27, 2007
(Author's note: This leapfrog version is to correct the inadvertent posting of two end paragraphs that should have been deleted.)
No, the NSA and CIA are no threat to our civil liberties. In fact, rather than being threats, since 9/11 they have safeguarded one of our basic freedoms: that of personal safety against people who wish us dead.
The National Security Agency, among other things, operates a vast and highly sophisticated electronic monitoring system that culls out potential threats to our nation. The role of the Central Intelligence Agency is to keep a wary eye on foreign governments, their agents and non-affiliated groups (terrorist cells, for example). Both the NSA and CIA serve as our early warning systems, that since September 11, 2001, seem to be working well.
Both agencies must operate within the law and are subject to rigorous oversight by both the courts and the U.S. Congress. There has not been any publicized case of any American who has had his or her rights violated by either the NSA or the CIA. In fact, the major criticism these agencies received in the aftermath of the 9/11 attacks was that they did not do enough and failed to share information with other law enforcement agencies. It would appear, then, that any criticism leveled at the NSA or CIA as regard the possible violating civil liberties would have to be regarded as either politically motivated or hypocritical.
Here's what these agencies do: Say there's some terrorist cell leader in Detroit (let's call him Osama), who receives periodic calls from his handler in Lebanon (we'll call him Ali). These guys chat periodically in Arabic and sometimes use the words "Jihad" and "death to infidels." The NSA monitoring computers picks up this chatter and alerts the FBI or local authorities to begin surveillance on Osama, which leads to the apprehension of a group of fanatics who are planning to shoot up a Detroit shopping mall.
In the meantime, having been alerted by the NSA, the CIA begins surveillance on Osama's handler, Ali, who happens to be a Muslim cleric with personal and financial connections with terrorist organizations and governments throughout the Middle East. Through its Interpol contacts and other investigation resources, the CIA learns that Ali is a major player in international terrorism. Ali goes for a stroll one evening, is abducted and wakes up the next day in the American confinement facility in Guantanamo Bay Cuba. Ali, who thought he was safe from detection, is shocked to learn that his cells in Detroit were broken up. The American interrogators convince Ali that he'd better tell what he knows or he might be an old, old man before he walks the streets of Beirut again.
In what way does the foregoing scenario threaten the civil liberties of any innocent American? To bring to a personal level, does the fact that any cell phone call I receive or make can be subjected to monitoring violate my civil liberties? If I pique the interest of the CIA by visiting an Al Qaida terrorist training camp in Iran, is my right to privacy somehow violated?
Those who use the civil rights argument to complain about the activities of our National Security Agency or the Central Intelligence Agency appear to be overly solicitous to the rights of those who care nothing about the rights of the rest of us. As Abraham Lincoln proved when he disregarded the rights of those who would wreck our Union, our Bill of Rights is not a suicide pact. Those who want to kill us do not deserve Miranda warnings nor gentle treatment.
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