
How would you feel if you knew you were being watched and listened to by the government through your computer camera or smartphone without your knowledge? In today’s society, Americans of every age own and use electronics that are considered “smart” and have the ability to both listen and reply to commands from the user end. Unfortunately, this technology also means that the manufacturer, as well as the United States government, has the ability to both see and listen into our private lives. Most people use electronic devices that have certain features, such as a built in camera or access to Wi-Fi. These features are designed to make tasks more convenient. However, convenience comes at a high stake: your privacy. 

Most high school students are required to read 1984 by George Orwell. While this novel was published in 1949, it foreshadows many of the real political controversies that have resulted since 2001 with regards to U.S. government surveillance. In the novel, the citizens in the dystopian society, Oceania, are constantly watched and listened to in the privacy of their own homes. (Orwell) After reading this novel, you may have thought, ‘this could never happen in the United States’. After all, American citizens are guaranteed freedoms and privacy rights that would not permit for this type of eavesdropping. Nevertheless, in 2017 the United States government, and intelligence agencies operating under the direction and regulation of the U.S. government, can and do surveil our daily lives via our communication channels. Like the citizens in the dystopian society in 1984, many Americans today feel violated and betrayed after learning that the U.S. government is permitted unwarranted and unconstitutional mass surveillance. 

Government surveillance is not a new concept but one that was addressed in the Constitution; however, the magnitude of surveillance has escalated in the 20th century. On September 11th, 2001 the United States was attacked by Al-Qaeda, leaving almost 3,000 innocent civilians dead and thousands more severely injured. This was the largest international terrorist attack on U.S. soil. Following the attack, in an effort to calm and relieve panic, President George W. Bush, in a public address to the nation, promised an increase in national security and safety. (“Text of Bush’s Address”) Security measures of all types were increased in an effort to eliminate any further threat of attack. These security measures included additional police presence at all airports, public events, and heavily populated areas, increased police force, and intensified technological surveillance. To justify the intensified surveillance, President Bush spoke about how the enemy hates our freedoms and liberties during his address to the nation. (Dreher) For the first time in American history, civilians worried if the country was capable of protecting itself. Americans were fearful and therefore willingly accepted the changes. Unwarranted government surveillance programs advertised as providing protection against domestic and international terrorism have called into question personal privacy rights. 

Although 9/11 forced Americans to recognize the importance of surveillance for security purposes, surveillance measures were present long before. In 1978, a statute, the Foreign Intelligence Surveillance Act (FISA), established a special court called the Foreign Intelligence Surveillance Court (FISC) that was responsible for approving any requests for physical and electronic surveillance of suspected foreign agents and Americans located in the U.S. The original act allowed surveillance by intelligence agencies for up to one year without a warrant specific to an individual. (Suarez) While this act was present prior to and at the time of 9/11, the U.S. intelligence community, including the National Security Administration, Federal Bureau of Investigation, and Central Intelligence Agency, was not able to exchange information regarding security concerns. (Suarez) As a result of new threats of terrorism that utilized the world wide web as a means of disseminating activity plans and rallying forces, more emphasis was needed on improving internet security measures.

It was not long following 9/11 that a new surveillance plan called the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, also referred to as the USA PATRIOT act, was proposed. The act was approved by President Bush in October of 2001 after passing through the Senate with only one vote of opposition. (“The USA PATRIOT Act: Preserving Life and Liberty”) The vote of opposition came from Senator Russ Feingold who stated concern that the proposed act violated civil liberties. Feingold’s opposition was dismissed by his colleagues and his concern for upholding the 4th amendment was ignored. (Baker) The USA PATRIOT act was designed to focus on enhancing the investigative tools that were available to security agencies for protection of the United States. Specifically, it provided law enforcement officers access to search businesses or homes without the owner or occupants knowledge or consent. The FBI, under this act, was also granted expanded use of National Security Letters for the purpose of searching telephone, email, or financial activity without a court order. Lastly, the most controversial amendment was that the NSA was given allowance to operate a mass phone data collection program without requiring a warrant. (“The USA PATRIOT Act: Preserving Life and Liberty”) While these programs were not widely publicized to civilians, both the Senate and Congress were aware of their existence. 

In 2008, restrictions were loosened due to the shift in fiber optic cables and the U.S. Foreign Intelligence Surveillance Amendments Act was broadened. In addition to relaxed guidelines, tools were applied to exploit the networks and the communication conducted through them. (Landau) The NSA was now permitted to request data from Verizon Wireless, AT&T, and other service providers and could run a program that would collect the cell phone records and internet activity, referred to as metadata. This data was then run through a program called PRISM that looked for suspicious patterns of behavior. It was stored and could later be searched using a program called xKEYSCORE. (Stray) General Counsel, Stewart Baker, adds, “‘Metadata absolutely tells you everything about somebody’s life. If you have enough metadata, you don’t really need content.’” (Landau) With the push of a button, government officials could enter a name and all activity, including phone calls, internet searches, and personal information related to that person would become available. 

Most Americans were unaware of the government surveillance programs being conducted on phones and emails until May of 2013 when a former NSA contract employee, Edward Snowden, came forward to the media and divulged the different surveillance programs. Snowden revealed the illegal data collection being conducted by the NSA. (Lyon) He revealed that the NSA had tapped the private fiber optic cables of Google, Yahoo, and Microsoft’s inter-datacenter communications without a warrant. (Landau) Susan Landau reports, “This wasn’t front-end access with a warrant; it was back end, apparently done without the company’s knowledge.” (Landau 63) This posed a huge threat to these large organizations and the business being conducted both domestically and abroad. This breach of trust meant a possible future loss of billions of dollars if foreign investors decided to avoid these companies as a result of this eavesdropping. The NSA relied on the known and unknown cooperation of commercial telephone service providers and internet providers to assist with codes and algorithms to complete their surveillance. (Lyon) The exposure of the depth of these programs angered many Americans.

Initial defense from President Obama was that the intelligence these surveillance programs offered was necessary to defend the U.S. from acts of terrorist. After Snowden’s exposé, Obama advised the Senate to end legislation that allowed mass data surveillance and collection by the government. (Baker) Additional defense was argued that the who, what, when, and for how long were the only pieces of information being accumulated. President Obama was adamant that calls were not actually being listened to and therefor there was no violation of privacy. (Landau)

The USA PATRIOT act expired in May of 2011; however, President Obama approved a 4-year extension called the PATRIOT Sunsets Extension Act. This extension allowed for continued searches of business records, additional surveillance of individuals’ suspected of operating as individual terrorists, and roving wiretaps. The extension expired on June 1st, 2015 and the Senate voted to revise the existing act. (Nelson) Seventy-seven senators voted for a modification to limit the scope. As Peter Baker, contributor to The New York Times, states, “To libertarians and civil liberties advocates, the shift underscores an evolution in thinking about the risks and trade-off of terrorism, a recognition that perhaps the country went too far out of fear and anxiety.” (Baker) Polls conducted in 2015 revealed that Americans asked for both, protection at all costs against terrorism but also limits on government invasion of privacy. (Baker)

As a solution to the expiring USA Patriot Act, congress proposed the Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection and Online Monitoring Act, also referred to as the USA FREEDOM act. This replacement act was passed under President Obama one day after the PATRIOT Act expired. President Obama praised the legislation for its work, stating, “‘Just as important, enactment of this legislation will strengthen civil liberty safeguards and provide greater public confidence in these programs.’” (“Statement by the President on the USA FREEDOM Act”) Most importantly, the USA FREEDOM Act sets limits on the bulk collection of telecommunication metadata being stored by government agencies including the NSA. The Act requires for data to be collected and stored by the responsible commercial phone service provider. The data is then required to be available to the NSA with adequate warrant approval. In addition, the FISC is required to be more transparent in decisions made and now allows outsiders to represent and argue for rights before the court. (“USA FREEDOM Act of 2015”)

The U.S. government aims to convince Americans to view the surveillance programs not as a violation of privacy but as protection from terrorism. The government continues to promote fear of terrorism in an effort to maintain civilian support for surveillance programs. Peter Ludlow, contributor for The New York Times, wrote, “Even democracies founded in the principles of liberty and the common good often take the path of more authoritarian states. They don’t work to minimize fear, but use to exert control over the populace and serve the government’s principal aim: consolidating power.” (Ludlow) A constant state of fear in Americans promotes a desire for the feeling of security and safety in the U.S. 

Now that the government surveillance programs have been exposed, Americans have started asking more questions as to the validity of these programs. Surveillance must be defined and differentiated from providing national security. With the increase in technology and the application of “smart” technology, Americans are making their lives more publicly available. Is it a violation of privacy when the government uses this data that is provided voluntarily? Imagine every search you make on the internet is linked to determine something about you or your behavior. That behavior is then linked with the behavior of other people that you have had phone conversations with, social media exchanges with, or texts between. With the increase in computer use, are Americans providing too much personal information in exchange for access to more information? For example, when you allow your physician to keep your record on the computer and you access your records from home for your convenience, you have just made that data available for surveillance. Perhaps you have been diagnosed with a mental illness, if this information was leaked via internet surveillance, your employer could be informed and your job compromised. 

While many Americans find surveillance unconstitutional and an invasion of privacy, some also view surveillance as absolute and necessary. Edward Jay Epstein, author of, “How America Lost Its Secrets”, best summarizes the question of surveillance, “a culture clash that will be central to this era of national security policy: libertarian hackers in one corner, animated by a belief that information will be free; privacy advocates in another, convinced that privacy and security are zero-sum; and the national security establishment in a third, united by a conviction that some information is so important that it must remain secret.” (Fick) The ultimate debate is the determination as to if surveillance provides the advertised claim of protection against terrorism or is it the government hiding behind security cameras to collect information on Americans. Government surveillance deceives Americans by claiming to be protecting them; however, data states differently. As stated by David Rosen, contributing author to AlterNet, “We are witnessing the integration of spying on two levels, the government level (federal, state, and local) and the corporate level (via telecom provider's, web services and credit card companies).” (Rosen)

Records, shared by The New York Times, report that in the 14 years that the USA PATRIOT Act was in operation, there has been no proof of a terrorist attack being prevented. Conversely, the same report does not show any supporting evidence that the data gathered yielded any personal or political gain. (Weisman) On the other hand, additional data provided by NSA Director, General Alexander, regarding surveillance claims, stated that attacks were thwarted 54 times since 9/11.  More specifically, it was reported that 42 of the 54 were terrorist cases, 12 cases were material support of terrorist, and 13 cases were domestic. (Landau) However, after more intense investigation, Susan Landau finds that each of the specific events used to back the above statistics could also have been uncovered using standard investigation practices. The prevention was not solely the result of metadata collection. (Landau) Landau states, “A 2009 report on the Bush administration’s warrantless wiretapping by the Inspectors General of the Department of Defense, Central Intelligence Agency, FBI, NSA, and the Office of the Director of National Intelligence concluded that the tapping generally played a limited role in the FBI’s counterterrorism efforts.” (Landau) In summary, in 16 years of surveillance only 54 cases have been identified, with only 10 having any possible domestic telephone connection. 

Regardless of security effectiveness, many Americans oppose this type of surveillance, claiming it is a violation of their personal privacy as guaranteed under the Constitution. The Fourth Amendment states that, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (Landau 55) As an average citizen interpreting this, one would assume a warrant would be required for any government entity to acquire data as relates to a person’s effects (belongings), for example, the cell phone. It is clearly understood that mail cannot be intercepted and opened legally by another person. Again as a civilian, one would assume this same interpretation would apply to email. According to former Vice President, Al Gore, “‘[The NSA surveillance] in my view violates the Constitution... The Fourth Amendment language is crystal clear. It isn’t acceptable to have a secret interpretation of a law that goes beyond any reasonable reading of either the law or the Constitution and then classify as top secret what the actual law is.’” (Landau 54) It has been determined by Federal courts, that unlike wiretaps that are considered to be searches because landline phones are fixed, metadata is not collecting content and therefore does not fall into the same category requiring a subpoena. Landau concludes, “metadata can be even more revelatory than content itself- for example, it can reveal who attended church versus an Alcoholics Anonymous meeting.” (Landau 57) The metadata provided by the commercial cell phone towers included location data and therefore was dismissed as not being considered content. Landau argues that this is no excuse for the violation stating, “Even the less finely grained cell tower information- and some of it can be quite precise- gives the government unparalleled power over its people…” (Landau 58) Americans under the Constitution are granted the right to freely move around the country without having to constantly be questioning who is following their movement with license plate recognition software and cell phone tower location software. 

In opposition to the violation of privacy, Senator James Lankford, Republican of Oklahoma, defended the need for surveillance stating, “‘National security and privacy are not mutually exclusive.’” (Weisman) Senator Mitch McConnell believes the USA FREEDOM Act limits the activity of the government to protect Americans he was quoted as saying, “‘I think Congress is misleading the public mood if they think Americans are concerned about the privacy implication.’” (Weisman) While there may not have been evidence of any specific thwarted attacks, supporters of less limits of government surveillance argued that metadata programs, “helped flesh out investigations in other ways, and could still prove to be crucial in the future.” (Weisman)

Another argument made for the need for mass data collection was how fast terrorist move and how quickly they are changing numbers. Obtaining the necessary warrant from the FISC required too much time was not always possible to obtain fast enough to avert a crisis or respond to an emergency. By using metadata, numbers belonging to the original target were linked to those within two degrees of separation thus creating a broader scope. (Landau 57-58)

Since there has been a cut in federal funds for surveillance, much of the government surveillance work has been contracted with the private sector. Concerns exist regarding these personal data files being handled inappropriately. Landau reports that while civilians may not have been aware of the contracting for surveillance until the Snowden reveal, the military and Washington had full knowledge of this practice. (Landau 61)

While many Americans find surveillance unconstitutional and an invasion of privacy, some view surveillance as absolute and necessary. Edward Jay Epstein, author of, “How America Lost Its Secrets”, best summarizes the question of surveillance, “a culture clash that will be central to this era of national security policy: libertarian hackers in one corner, animated by a belief that information will be free; privacy advocates in another, convinced that privacy and security are zero-sum; and the national security establishment in a third, united by a conviction that some information is so important that it must remain secret.” (Fick) The ultimate debate is the determination as to if surveillance provides the advertised claim of protection against terrorism or is it the government hiding behind security cameras to collect information on Americans. While there may not have been evidence of any specific thwarted attacks, supporters of less limits of government surveillance argued that metadata programs, “helped flesh out investigations in other ways, and could still prove to be crucial in the future.” (Weisman)

While the government aims to provide ultimate security for all Americans, surveillance measures are being taken too far and are thus exploiting personal privacy. Even with the changes to surveillance laws and the enforcement of transparency, American citizens must take responsibility to protect their privacy. There are actions each of us can take as we access the internet and social media that will protect the government from more information than necessary. Protection of privacy begins with limiting the amount of information one enters on the web to access different sites. In addition, there are computer software programs that can be purchased and used to secure information transfer. The biggest harm is using the free software, as this technology does not offer encryption. Encryption is one way both the service provider and the end user can protect personal information. With the rapid advancement of available technology, government restrictions and guidelines are not keeping pace. Americans must require that laws that restrict government surveillance be maintained at an equivalent rate.
