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Add to FavoritesNSA'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
Bec ause 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
A threat differs from the more substantial direct harm of action, usually. The N.S.A. and C.I.A. haven't recently been known to be making public threats upon American civil liberties so far as I know. The N.S.A. has been given the task of scanning e-mails incoming to the federal government in order to filter out virus's, spyware and mal-wear,m yet they have done so without making many threats. They could have the sinister ulterior purposes of searching for pornography hidden upon the databases of congress-persons possibly to provide ABC or CNN with tasty tidbits of dirt that would affect political fortunes more toward the liking of a shadow government hidden behind the veils of secrecy shielding the N.S.A. and C.I.A. from mal-ware and spy-ware surveillance by domestic and foreign intelligence agencies that may be seeking to protect the civil liberties of Americans-yet maybe not.
Spook agencies probably would never tell if they did spy on and subvert American lives in America. What if they undermined the home mortgage or banking lending practices and cause a drop in the stock market? I have no belief that federal employees become saintly when being employed, nor that the federal government hires ethical philosophers from monasteries mainly for espionage work that have spent a lifetime in a cave retreat in a Sinai wildernesses without speaking and decide to leave the mystical contemplation of the absolute spirit to hunt Al Qa'eda that may be incarcerated in New Jersey eventually along with mazes of offices workers. When Al Qa'eda detainees are brought to America along with lawyers and witnesses the C.I.A. will have little choice about following up leads domestically perhaps.
The N.S.A. could threaten civil liberties if it operates broadcast television and distributes digitally mind-dumbing programming for the people to watch and be enthralled by-perhaps intentionally distracting them from their usual intense interests in reading political philosophy and rectifying wrongs in environmental and balance of trade affairs. They would have competition from the corporate sector of course.
Of course a very powerful government 'threatens' civil liberties, but so does the proverbial Genghis Khan and the golden horde, basement nuclear bombs and penthouse bio-engineering labs making designer weapons to delete the poor from existence after their last penny has been squeezed from them and they have no worth as workers. A government with millions in standing armies, marines and airmen controlled by corrupt globally loyal politicians has quite an advantage over those trembling urbanites demanding gun control doesn't it? The C.I.A. and N.S.A. along with an alphabet soup of organizations the government has in its pocket is designed to guarantee subjugation of U.S. citizens for the amusement of global corporations and maybe for the Chinese Communist Party. Information is a killer of a weapon today-and the U.S. Government has loads and loads of it making sure that no citizen has any business or personal interests unavailable to it or to global Chief Information Officers. They are not liked.
Americans must live with the crowding of government and business power, with institutions far wealthier than their wildest dreams and with powers of information acquisition more than even ordinary citizens have on the Internet and through other means of gossip. Americans must be as naked as herd cattle to be trustworthy within the communal rules of the age. Communal values in the Pentagon deem that the shirts must be unwrinkled and shoes brightly shined probably with permanent shine technology. The Chief of staff knows who has been naughty or nice and who shall be promoted or demoted...the American commune has aspects of the Evil Empire embedded with residuals of liberty that the founders knew in the colonies. The problem is that modern Americans really don't try hard enough to respect personal liberty, they have created a broadcast media monster to be a live mockery of the concepts of quiet enjoyment of life through work for one-self without a global zeitgeist air-blaster, and don't know how to control a corrupt government that spends money like drunken sailors under the supervision of global corporations (I could find a way and so could a few others I am sure).
Civilizations must evolve complexity, yet American society should assure that all citizens have a guaranteed minimum income so they are not excluded from propriety and tramped on for decades by the corrupt dogs of government and global corporations that have an advantage in making a farce of freedom. The poorest Americans should have priority in being hired by corporations in return for proportional tax cut advantages (tax credits) for keeping the previously poor happily employed. There might even be a random draft of poor Americans to work in classified areas of Homeland Security periodically in order to maintain transparency going. Perhaps there are 'Jason Bournes' lurking 'out there' ready to go and spy on the rich traitors to the l.e.m.s. of Alaska and the rest of the free world, or design clever snatch and bag missions for the C.I.A. in exotic locations abroad such as Pakistan and Afghanistan. Perhaps no one in the U.S. Government is trustworthy anymore, yet what can be done about that-revolt?
If the government is a fascist collective that hates individualism and subverts it however it can using foreign terrorism as a lever to perpetrate collateral damage upon the privacy and proprietary interests of American citizens certainly it is a threat. While Lyndon Baines Johnson seemed to enjoy reading secret surveillance reports of M.L. King's sexual dalliances, and J.F.K. evidently had a Marylin Monroe appetite in office, surveillance outside the White house can lead to incorrigible invasions of substantive private concerns, even if they are of a more defamatory nature. The Internet and telephony should be protected from federal surveillance without court order when no crimes are known to have occurred, and especially when no foreign elements are involved.
Corruption and bad policy are perennial threats to good government. A good president would issue daily corruption reports on the Internet and award a percentage of recovered moneys to whistle blowers or fraud detectors for finding government corruption especially in federal contracts at home and abroad. Even soldiers should be given cash incentives for reporting accurately known instances of war crime and corruption by higher ranking military personnel with clear and accurate evidence. Can the N.S.A. itself present a danger to American security? Is it another gas-operated golf cart rolling through adult-sized bowling pins metaphorically speaking on Saturday mornings in summers on the East lawn of the White House without anyone noticing?
The N.S.A., like hydrogen triple action bombs could be used to harm the United States if it were in the control of corrupt repressive trans-nationalists seeking to flood the country with illegal aliens and give political power to foreign corporations producing oil and automobiles. Fortunately for the United States such troubling prospects on incipient treason will be subject to an end-of-doubt referendum in the 2008 Presidential election.
Certainly the N.S.A. could take the erased data from personal or office computers and recover if from the trash bin and perhaps let your boss know what you really do with your time at work with 'play'. If you are thinking about taking rabbit pox and genetically changing it into a human pox and increasing the incubation period from 7 to 14 days the N.S.A. might find out about that to if you mention the word pox, plague or peripheral medical terminology into the sweet nothingness airspace of a cellular telephonic device. The N.S.A. is after just the facts, the data Mann, and not interested in interpretation of the data-that job is given unto the drudges in other agencies, possibly outsourced safely to contractors in India and China that can do it cheaper, faster and better. Maybe Halliburton has contractors working on the data secretly at high rates of pay because they are worth an it, and are learning Arabic in a Berlitz course.
The N.S.A. can safeguard the people of the United States by learning what illegal aliens are doing when they cross by the millions over the Mexican border, and where they go afterward. If there are secret bunkers with beds and solar cells to keep the beer cold in while the people await delivery to Minnesota or New York the N.S.A. will try to find out about it and report it to Homeland Security's top people who will report that to the President who may mention something about it to the President of Mexico and guarantee the people of the United States that a fence is a better idea than a Hadrian's wall with electric vehicles on top on patrol but you can't stop progress and the march of illegal aliens to a different drummer of quest for profits is really for the best interests of the people. It cannot be iterated enough that taxes on the rich hurt the economy, and borrowing money from Japan and China and India to create vast public debt isn't a sneaky way of taxation as long as the money goes to trans-national corporations that produce things for war and rebuilding from war.
No; the N.S.A. can only harm the enemies of global corporations that might be communist if they support national democracy and public infrastructure quality renewal and a balanced national public sector budget. The N.S.A. will not divulge the secrets that trans-national C.E.O.'s keep and communicate to each other privately, nor post on You Tube any compromising photos or videos of political celebrities without review by Mr. Bush or the next trans-national lackey to occupy the oval office and associated spaces for clandestine sexual relationships even if within the context of matrimony. The N.S.A. is no harm to the people of the United States- the price of gasoline is-and gas harms the atmosphere too.
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