NSA Surveillance Program
The Foreign Intelligence Surveillance Act (FISA) was created in 1978 as a response to past presidential abuses of massive domestic wiretapping and surveillance that were conducted by the National Security Agency (NSA) on many innocent Americans. FISA was designated to limit warrantless foreign intelligence surveillance for national security purposes and to issue the extent to which NSA could seize domestic communications. An executive power would need a warrant approved by FISA and only for the cases where the sole intention for the surveillance was to obtain foreign intelligence information (Skalski 15).
Things changed shortly after the September 11 terrorist attacks in 2001 when President Bush secretly gave authorization to the NSA to wiretap Americans on the US soil without a warrant from FISA. By the same year, the Bush Administration passed the Patriotic Act that enabled FBI to demand the sharing of “any tangible things sought relevant to an authorized investigation” (Barnett 4), including strictly domestic records. Also, three days after the terrorist attacks, the Congress passed AUMF (Authorization for Use of Military Force) Act that was a necessity, but it was wrongly used by the Bush Administration as the reason of permission for the massive spying program. Because of the secrecy of these surveillance transmissions, the American public had no idea of the existence of these types of programs until the summer of 2013 when Edward Snowden, a NSA contractor, leaked classified information to The Guardian newspaper. The film called Citizenfour produced by Laura Poitras in 2014 exposed on camera the truths about the danger of mass wiretapping program in our present society by interviewing Snowden.
There are many defenders of the NSA program that highlight its necessity and its importance for the national security and the war on terrorism. However, based on multiple credible sources in my research and the deep criticism of more and more people about it since successive revelations came to light starting with 2013, I find the NSA program to be unconstitutional because it violates the civil liberties of the Fourth Amendment of the Constitution: the right to privacy, freedom of speech, and the right to be free from unreasonable searches of your home. Correspondingly, I find the NSA program to be unconstitutional because it violates the strict and limited rules imposed by FISA on warrantless foreign intelligence surveillance. Equally important, I consider the massive surveillance program unconstitutional because it is based on a misinterpretation of the AUMF Act passed by Congress on September 2001. Finally, I find the widespread wiretapping program to be unconstitutional because it causes a “chilling effect” on communication due to the public’s fear of surveillance.
I strongly think that the NSA program is unconstitutional based on the fact that it violates the rules inflicted by FISA on warrantless foreign intelligence surveillance, and because it violates the protection of the Fourth Amendment of all US citizens from unreasonable searches and seizures by requiring a warrant before any federal agency can search and seize any citizen. FISA states clearly that an executive power would need a warrant approved by its court and only for the cases where the sole ”purpose of the surveillance is to obtain foreign intelligence information” (Skalsky 15). If FISA approves a request, there is a judicial form that must be completed and must specify the identity of the target, the location and the type of establishment placed under surveillance, the type of communication monitored, and the period of time approved for the surveillance. Moreover, section 1809 of FISA act says, “ it is a crime to collect electronic surveillance beyond the scope of this exclusive means […] when Congress declares war, the president shall have fifteen days to conduct warrantless wiretapping, but fifteen days and no longer, if he does not come to us and ask for further authority” (Cole 512). By secretly authorizing the massive wiretapping of all Americans without asking for FISA permission and its warrants, President Bush and his Administration clearly violated the rules inflicted by FISA. Sadly, President Obama makes constant efforts to keep the NSA program in secrecy by using the state secrets privilege to block the disclosure of information about NSA on the premises of endangering national security, and he relies greatly on such surveillance against Al Qaeda terrorist group.
Another reason that I find the NSA surveillance program to be unconstitutional is the violation of the Fourth Amendment right of all Americans to feel safe in their homes and to feel free from unreasonable searches and seizures of their homes. Collecting metadata on every American without any valid link to a terrorist group and without any reasonable suspicion that a person did anything wrong is completely inappropriate and illegal. Because of the unattainability to access information based on the secrecy of the program and because there are no time restrictions applied to this program based on the fact that we deal with the war on terrorism that can last for a very long time, each of us would have a recorder device on our phone, e-mail, and card transaction for the rest of our lives, and we don’t know the scope of this metadata collection and the harm that it represents to us when the executive powers decide to use it. According to Barnett, “In its briefs, the government intimates that the NSA is subjecting the data to computer analysis to reveal suspicious patterns. But others have defended the retention of this data simply to facilitate future searches of records pursuant to later investigations” (Barnett 10). I find the whole situation to be very disturbing and difficult to resolve because , as George Pike, the director of Pritzker Legal Research Center, points out, “the FISA court operates largely in secret. There are no public hearings and very few published opinions”(22). The NSA program is like “the modern day equivalent of the general warrant that strikes of the very heart of the Fourth Amendment’s requirement of particularity”(Barnett 16).
In like manner, I find the NSA surveillance program to be unconstitutional because it violates the basic right to privacy guaranteed to all Americans by the Fourth Amendment of the Constitution. I completely agree with Cole when he says, “Americans clearly have very, very high expectations of privacy […] Americans want to know that they are safe in their homes and that they have the rich, autonomous, private life that nobody can intrude on” (509). The fact that people build walls and fences for their houses, the fact that people use passwords on their e-mails, phones, computers, and Web accounts show that people expect to have privacy in their lives, and they don’t want their information or their conversations to be seen or heard by others. Moreover, the fact that people sign contracts for which they pay for, either for a lease, for a bank, or for a telephone company, show that people expect the privacy assurances of these companies to be respected. They don’t want their private data or their private conversations to be shared with other parties, and this is one of the reasons they pay for these services. It is unclear how the whole situation about the NSA surveillance program will play out because, as Pike mentions, “During times in our history when foreign threats resulted in actions that challenged civil liberties in the name of security, the actions largely dissipated when the threat was resolved. It’s unlikely the war on terrorism will be resolved with something similar to V-E Day or the fall of the Berlin Wall. The challenges to rights and liberties are less readily dissipated”(22).
Equally important, the section 215 of the Patriotic Act is a slap in the face for all American citizens and their right to free speech and privacy. Section 215 expanded the jurisdiction of FISA court and allowed it to issue orders requiring the collection of any “tangible things”(Barnett 4) relevant in an investigation by the FBI, including strictly domestic calls. Basically, it allowed the metadata collection on every American from the big telecommunication companies, like Verizon, and from the big internet platform providers, like Google, Apple, Facebook, etc. According to Barnett, “I consider to be the serious constitutional problem with any such program: the fact that the NSA is demanding that private companies, with which virtually all Americans contract to provide their voice communications, turn over the records of every phone call that is made on their systems. This metadata is then stored on NSA super computers for later analysis”(3). What strikes me the most is that, by doing all this massive data collection on all Americans without specific targets, the executive powers are doing something unconstitutional because they violate the requirement of the Patriotic Act, Section 215: any order issued for this section must include a “statement of facts showing that there are tangible things sought relevant to an authorized investigation”(Barnett 4).
What can it be so relevant about all Americans that they find the need to spy on all the citizens? I look at it from the perspective that our executive powers and leaders, the same ones that were elected by the same citizens that are doing surveillance on, think of all Americans that they are potential criminals and they need to constantly spy on all of them, which I think is very wrong, and it reveals a big trust issue of the US government agencies and elected officials with the American public. It is also a big contradiction because, on one hand, the American officials say that they value the civil rights and the civil liberties, but, on the other hand, they don’t trust any of their citizens, and they go and spy on them. Moreover, it reminds me of totalitarianism practices, and it is sad that it happens in such a free and democratic country as USA. As Gaines says, “It’s clear that this administration has engaged every possible agency, from the Pentagon to NSA to the FBI, to engage on spying on Americans. You look at these documents and you think, wow, we have really returned to the days of J. Edgar Hoover”(12).
By the same token, I find the NSA surveillance program to be unconstitutional because it is based on a misinterpretation of the AUMF Act passed by Congress shortly after the terrorist attacks in 2001. To be more precise, the Congress passed the Authorization for Use of Military Force Act in September 14, 2001, and the Bush Administration and its executive powers somehow transmuted the act into the missing statute to give permission for the NSA program. But AUMF did not explicitly mention wiretapping or surveillance, and, in my opinion, it is completely wrong to purposely alter the interpretation regarding the statute of an act to find reasons for an unlawful action. As Katyal notices, “The 2001 AUMF Act said not one word about electronic surveillance, and there is no reason to suspect that Congress had any idea that it thought it was creating an end run around FISA”(Katyal 1065).
Lastly, I find the NSA surveillance program to be unconstitutional because it causes a “chilling effect” on communication. As Wong states, “A chilling effect is a term in law which describes a situation where speech or conduct is suppressed by fear of penalization at the interests of an individual or group. It may prompt self-censorship and therefore hamper free speech’’(Wong 530). In our situation, as more and more people are aware of the widespread wiretapping program, the fear of surveillance intimidate and force the individuals to self-censor their communications. The government massive spying activities impair the public confidence and inhibit their right to openly express their ideas and beliefs. As Solove notices, “Chilling effects harm society because, among other things, they reduce the range of viewpoints expressed and the degree of freedom with which to engage in political activity”(747).
Although the NSA surveillance program came under the criticism and disapproval of many members of the press and the American public since the true nature of the program was exposed to people, it continues to exist and function in the same manner as before. It does not have to be this way, and the solution should be the introduction of mechanisms that allow the federal courts and the Supreme Court to voice their opinion regarding the surveillance program, and, once for all, to allow them to decide on the legality, jurisdiction, and the future of this program. I understand that the safety of our country is of maximum importance, but it should not be used as a general excuse to completely ignore the concerns of the American citizens about these types of surveillance. No more excuses, it is time for the courts to come clean in front of the American public, to keep their constitutional obligations as the juridical branch of this nation, and to decide the warrantless surveillance program’s legality once and for all. On top of all that, they should make the NSA program public, and they should answer any questions or worries that people may have about it.