The revelations of the surveillance programs perpetuated by the NSA have reinvigorated the conversation of what right there is to privacy in 21st century America. As some tragic plots have reached the United States, most recently the Boston Marathon bombings, security agencies have with the approval of both Congress and the Obama Administration been granted powers to collect tremendous amounts of data on both national and foreign residents. Under the PRISM program, terabytes of data are collected, and organized as a method of finding patterns and connections. If interested, a project from MIT recreates the method in which data can be gleamed from accounts and connections can be drawn.
The program is in a legally auspicious position, though concerns about the right to privacy and the concerns of an illegal search exist; the program has been authorized by a provision in the Foreign Intelligence Surveillance Act. Section 702 of the Act allows for surveillance of non- US persons and it prohibits the intentional surveillance of US residents, however the broad definition of the section has given legal lee-way into the approval of the program. If the incidental monitoring of persons located in the US occurs, it would have to be approved by a subset of the Supreme Court called the Foreign Intelligence Surveillance Court (FISC). The FISC is a panel of 11 judges that are appointed by the Supreme Court Chief Justice John Roberts. The problem becomes that this body of judges is not subject to approval from anyone outside the government. Just in the 2012 calendar year, the FISC approved all 1,788 applications for surveillance that it saw. Hence, the court has been accused of being a rubber stamp for the continuation of domestic surveillance, though judges have spoken out, asserting that they apply rigor in their scrutiny of government requests.
The judges also defend their limited disclosure is in correspondence with the confidentiality of the cases that they hear. FISC judge Reggie Walton wrote a letter to Senator Diane Feinstein admitting that he would like to open the hearings to more scrutiny from those outside the court, he maintains that differentiating the classified facts from the from the legal analysis is nearly impossible. He denies outside access to the application due to the fear that the disclosure of intelligence activities “could be harmful to the nation’s security.”
Senator Feinstein, at first was a supporter of the program. Defending the program in 2012, she wrote in her report to congress that
“Section 702 is narrowly tailored to ensure that it may only be used to target non-U.S. persons located abroad. For example, Section 702 includes specific prohibitions on targeting U.S. persons or persons inside the United States and engaging in so-called ‘‘reverse targeting’’ (i.e., targeting a non-U.S. person abroad in order to obtain their communications with a person inside the United States).”
Conservative Congressman Frank Sensenbrenner Jr. had a different opinion about the depth of the surveillance. He said
“Congress intended to allow the intelligence communities to access targeted information for specific investigations.” The N.S.A.’s demand for information about every American’s phone calls isn’t “targeted” at all — it’s a dragnet. “How can every call that every American makes or receives be relevant to a specific investigation?”
Now of course, National Intelligence Director James Clapper had denied that the NSA collects data on millions of Americans when asked by Sen. Ron Wyden. Of course, that statement has been discredited and it is a worthy question of how much disclosure was provided to Congress about the depth of the program.
Never the less as it stands now, the PRISM system has civil liberties defenders worried. The ACLU has filed suit in a New York court claiming that the government has infringed on the rights of citizens. The argument that they state is that by monitoring and tracking to whom and for how long any American talks, it is the equivalent of making each individual write down where they visited and for how long. At this point, the evidence seems irrefutable that a surveillance system has been disclosed that supersedes any other publicly known counterparts.
Barack Obama has been on the defensive about the infringements the program makes. Obama is in line with how a majority of Americans feel about the program, in that it is viewed as a necessary inconvenience in order to protect the country. According to a recent poll, 66% of Americans do not see the PRISM program as an infringement of their rights. A view that is similar to the metaphor that President Obama used in that it is “a trade-off we make, the same way we make a trade-off about drunk driving. Occasionally, there are going to be checkpoints. They may be intrusive.’”
Contrary to the president’s view several state and federal senators have proposed bills to limit what is available for security agencies to monitor. The contradiction with several of the state proposals is that federal law would supersede any state provision in regards to counter terrorism, therefore rendering their bills essentially impotent. That has not stopped the outrage in display in these bills that work to strongly hinder any surveillance powers that can lead to charges allowable in the legal system.
Both California and Illinois have proposed bills that would strengthen the standards needed for approval of monitoring a phone for location or conversation information. Illinois SB 1918 states that any information obtained about call location that was not requested by the phone user, as a response to an emergency, or from a warrant based on probable cause would not “be admissible in any criminal, civil, administrative, or other proceeding.” Professional dissertation editing help per your request – we will make your papers shine! California has responded to the federal government with AJR-27 that reprimands the lack of federal oversight on the issue. Representative Judy Chu, in defense of a bill that demands that the Federal Government disclose all unclassified FISA reports to the public states that “oversight conducted in secret defeats its purpose.”
Vermont Senator Bernie Sanders has proposed US SB1168 or the Restore Our Privacy Act which mandates that the Director of the Federal Bureau of Investigation presents specific and articulable facts giving reason to believe that [surveillance] is relevant to an authorized investigation. Not only does the bill call for disclosure to congress, it also makes the disclosures to congress available for public record. A bill concerning the PRISM program has also been proposed by a group of Democratic Senators, including Senators Wyden and Udall who originally spoke out about the powers granted under FISA.
Their bill, US SB 1215, is rendered around “minimization.” Meaning that the knowledge of specific procedures that use a pen register or trap and trace device shall be kept to a select few individuals in order “to minimize the retention and prohibit the dissemination of non-publicly available information.” Though both bills are produced from generally more liberal Senators, they largely disagree on how much information shall be disclosed to the public, and the best method with which to proceed with the program.
Even the appointment of the judges to the FISC has been up for debate. A bill in the US house seeks to change the current procedure for selection of judges. US HB 2586 would insist that instead of Justice Roberts selecting all the judges, only three will be selected by him. The remaining spots will be chosen by the Speaker of the House, the minority leader in the house, and the majority and minority leaders of the senate all of whom choose two. However, like all the other previously mentioned bills proposed in congress, none of the bills have come to pass.
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The method in which congress, as well as individual states proceed, in how to apply the FISA will be a great barometer for the future of the security versus liberty debate. The gulf between the merits of open government versus the standards for national security squalls the debate on how best to govern the United States in terms of prioritizing civilian rights or national defense. Regardless, now that the information has largely become public on the scope of the program, it is also the duty of the press and individuals to comment on what will come next as the technological capabilities to monitor increase.
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