Posted by Angelica J. Simpson
April 17, 2015
Over the past few years there has been headlines making their way claiming the governments gross overreach in surveillance. Stories that the FBI can hack into your computer, or that NSA is gathering everyone’s phone records, down to tracking capabilities through GOOGLE Maps apps and technology. But just how true are these headlines? Does American law allows for and even facilitates the ability for the government to use technology to track and spy on people? The reality of it seems to be that while the law allows for some surveillance, it also constrains the power as well.
The Fourth Amendment of the Constitution of the Unites States of America is generally accepted to be the source of protections from illegal searches from the government. At its time of conception until today, case law has drastically led to the way American courts interpret and apply this right. Originally drafted and introduced by James Madison in 1789 as a general protection from unreasonably searches and seizures, today this Amendment applies to cars, surveillance, searches at school, phone records, and even the Internet. With the laws that shape what can be searched under the Fourth Amendment, case law has also given rise to exceptions under these guidelines as well.
Smith v. Maryland, a 1979 Supreme Court that dealt with Fourth Amendment and phone records seems to be the first case to deal with general searches of this type by the government. The defendant in this case attempted to argue that he had a reasonable expectation of privacy to the phone numbers he dialed. In a debate about the constitutionality of a pen register (an electronic devise that records all numbers called from a telephone line), the Court found that since the defendant would have had to disclose the numbers he dialed to a telephone company, there is no distinguishing between a human operator and the use of automatic equipment to record this information. This case left pen registers unprotected by the constitution.
Smith v. Maryland thus became the most cited opinion by government agencies are their legal basis for collecting metadata. NSA suggests that the collection of metadata is the same as collecting phone numbers. However, not everyone agrees. One major difference between the issue in Smith and the data collection today is that in Smith the data collection was focused on a specific person already suspected of committing a crime. The surveillance collection today is focused on collecting the bulk amount of data possible from all individuals. Further opponents argue that the surveillance capabilities in 1979 are far below todays and for those reasons alone Smith cannot be a reliable source of law. Michelle Richardson (attorney at the ACLU) argues that Smith is “way out of date, it was before cellphones, before the Internet, before services that collect intensely personal information.” Recently cases have been brought before the Court challenging if Smith is still good law. In 2012, United States v. Jones noted that with the advancement of smartphone technology, specifically the ability to locate, Smith v. Maryland might not hold up in the face of modern technology. Justice Sotomayor noted “fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties”. She even noted that the people being aware of the Government spying and watching “chills associational and expressive freedoms.” The battle however doesn’t end here.
The Foreign Intelligence Surveillance Act passed in 1978 further complicates the matter. The act resulted in the creation of the FISA court system. The idea was to give judicial and congressional oversight to the government’s surveillance of foreign entities and their communications with individuals in the Unites States. The process was to allow surveillance without a court order for up to one year, unless a United States person was involved. Judicial authorization was required within 72 hours after surveillance began if the communication was with a United States person. The purpose of the surveillance must be to obtain intelligence in the United States about foreign enemies, agents, or spies. The government was required to show probable cause that a “target of the surveillance is a foreign power or agent of a foreign power” in order to granted a warrant. Failure to go before the FISA courts resulted in a criminal sanctions of up to five years in jail, fines up to $10,000 or both. The stature also creates a cause of action for a private individual to collect damages if their communication is monitored unlawfully. Since its original conception, the Act has been amended into what it is today, including the heavily debated section 215 or the Patriot Act.
In 2011 Congress passed the Patriot Act as a response to the September 11 attacks. The amendments passed changes the provisions of FISA that dealt with crimes and criminal procedure as well as the Electronic Communications Privacy Act of 1986. The two most controversial portions of the act are section 215, and 206. Section 215 states that the government can obtain any tangible thing that is relevant to an investigation on terrorism. Opponents of this section claim that this is an insult to the traditions of search and seizure as the government foes not need to show reasonable suspicion before undertaking an investigation. Instead they may investigate first, and then explain later. Section 206 which some claims is the “roving John Doe wiretap”. This section allows the government to obtain intelligence surveillance orders that don’t identify either a specific person or a facility to be recorded. Essentially a blank warrant to tap. The ACLU has specific campaigns to inform people about the Patriot Act and the need for reform. The extended provisions of the Act are set to expire on June 1, 2015, and bills are present in both the House and the Senate to amend these provisions. However, as of date, Congress has been moving forward to reauthorizes these portions without change.
Advocates of the Patriot Act claim these provisions are needed to fight terrorism. They claim that the Act prevents terrorism and poses a minor infringement on civil liberty. They cite the ability to monitor “lone wolves” that have yet to be connected to terrorist groups as a necessary part of investigation. Further claiming much of the Act applies only to temporary visitors and has safeguards against spying on Americans. They feel that in order to prevent terrorist attacks, the government needs the ability to monitor and collect data. Many thought the debate was over, and the Act was sure to expire in 2015. However after the terrorist attacks in Paris that killed 12, the NSA has come out claiming these provisions are needed now more than ever to protect Americans.
The most notable recent leak of NSA spying information came from Edward Snowden. Snowden was a former CIA employee who “leaked” information to the American people of ways in which the government could and was spying on them. He mentioned the secret court order that demanded Verizon users phone calls and date. In an interview with The Guardian he stated “The government has granted itself power it is not entitled to. There is no public oversight. The result is people like me have the latitude to go further than they are allowed to. My sole motive is to inform the public as to that which is done in their name and that which is done against them.” Snowden is responsible for telling the public about the abilities of NSA to spy on foreign countries and world leaders, the use of PRISM to collect user date on servers, NSA using Google and Yahoo data center links and the ability to collect text messages through a program called Dishfire. These revelations shocked not only Americans, but people across the world. The ability for the American government to watch and monitor communications was at a level beyond what many believed.
While the debate carries on, the use of the government to justify its ability to use a warrantless surveillance program remains intact. Interpretations of FISA, its amendments, and the Patriot Act remain the legal safeguard for the mass collection of data on citizens in the United States. Lawsuits challenging the government’s authority however are attempting to restrain this collection and hold the government to a higher standard. First Unitarian Church v. NSA argues that this spying violates the First Amendment, which protects the freedom to associate and express political views as a group. They claim that the use of surveillance, the government is acquiring communication that would violate this right. Jewel v. NSA is attempting to challenge the use of these programs claiming they are both illegal and unconstitutional. In February 2015 dismissed the claim of the constitutionality of the UPSTREAM data collection program, citing a lack of standing, but did not actually rule on if the program was constitutional.
The emergence of information made public of how the government has the ability to collect and monitor data on its citizens raises questions of legality. Sooner rather than later the Courts will have to address concerns brought forth my people questioning the reach of the government. Using claims that the programs are targeting foreign nationals seems to be weakening as well. As Richardson stated “When you’re taking about billions of billions even a tiny fraction means a huge number of Americans are in there.” With numbers that high, the protections of the Fourth Amendment would need to apply at some point.