Download Fyezah Nazir Jonathan Keeperman Writing 39C 17 May 2015 USA

Fyezah Nazir
Jonathan Keeperman
Writing 39C
17 May 2015
USA Freedom Act: The Next Step In Securing American Civil Liberties Against a Surveillance
State
"There was of course no way of knowing whether you were being watched at any given
moment. How often, or on what system, the Thought Police plugged in on any individual wire
was guesswork. It was even conceivable that they watched everybody all the time. But at any
rate they could plug in your wire whenever they wanted to. You had to live—did live, from habit
that became instinct—in the assumption that every sound you made was overheard, and, except
in darkness, every movement scrutinized"(Orwell). There is something about being watched that
makes people feel insecure, uneasy and even self-conscious at times although when asked why
they do not like being watched they can quite put their finger on why it is so unsettling. It is not
uncommon to have somewhat of a “sixth sense” and detect when someone is watching you.
People who experience this feeling of being watched report a chilling sensation at the back of
their neck and the emergence of goosebumps (Shrira). According to Good Therapy experts, an
organization that bridges the gap between therapists and the general public by disseminating
mental health news and information, challenging mental health stigma, and promoting ethical
therapy, the systematic surveillance and monitoring of a people is sometimes considered as
analogous to being watched by a stalker and has various detrimental psychological effects like
increased stress and paranoia. Simply put, people aren’t comfortable having their actions,
behavior, and communications monitored and recorded. Throughout history, governments like
the Soviet Union under Communist rule and China have conducted large-scale surveillance
practices in which everyone’s transactions, communications and relations were constantly
monitored and stored. The dangers of a surveillance state have been outlined in scholarly
journals, literature and other mediums. George Orwell’s 1948 and Kurt Vonnegut’s Harrison
Bergeron among other works illustrate a society in which surveillance states become oppressive
totalitarian governments who govern and dictate every realm of an individual’s life which
threatens civil liberties like free speech and privacy right, as portrayed by the excerpt taken from
Orwell’s piece 1984.
The progression of minor surveillance tactics to a totalitarian government is a process
that doesn’t happen over night but rather through promises of increased national security and a
cease to terrorist attacks. The dystopian society Orwell created in his fictional telling of 1984 is
in some ways a reality of the modern-day situation in the United States. The United States has
been slowly adopting measures that continue to increase their scope of government and powers
of surveillance in the name of national security and the prevention of terrorism. The September
11th attack on the World Trade Center, the Boston Marathon bombings, the anthrax letter attacks
and other past terrorist attacks are often used as justification for increased government intrusion
and mass government surveillance programs (FBI). The Foreign Intelligence Surveillance Acts
(FISA), the USA PATRIOT Act, and the court case Olmstead v. United States illustrates how the
government has increased their powers of upstream surveillance to essentially monitor, track and
store people’s communications and data to be called upon when necessary (More information for
evolution of government surveillance can be found here:
http://www.infoplease.com/us/government/spying-surveillance-timeline.html ).
Following the terrorist attacks on the World Trade Center in 2001, there was an
immediate response to the attacks that dramatically increased and expanded the powers of the
executive branch and the National Security Agency (NSA). The most controversial piece of
legislation in support of government surveillance as of recent is the USA PATRIOT Act
("Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001") which was passed by the Bush Administration just a few
weeks after the September 11th attack. The PATRIOT Act is not a lengthy piece of legislation
nor does it utilize clear, concise language, which is why critics of the PATRIOT Act claim that
the government has abused this lack of clarity and why the language of the USA PATRIOT Act
makes most Americans vulnerable and susceptible to wire tapping and surveillance (ACLU). The
USA PATRIOT Act is not only legally unconstitutional because it denies both the First and
Fourth Amendment rights but also morally wrong because it dehumanizes Americans by creating
an unbalanced power relationship between the watched and the watcher (Richards). However,
since the PATRIOT Act and the FISA Amendments are already in practice they pose as legal
obstacles to reforming government surveillance.
Opponents of government surveillance and the PATRIOT Act, like the American Civil
Liberties Union, PEN America, and journalists, call for limitations and restrictions on the
legislation in order to ensure that the government is not overstepping their boundaries and so that
the American civil liberties like the freedom of speech and the right to privacy are (Center for
Democracy and Technology). These experts claim government spying gives rise to a chilling
effect, which is the phenomenon that describes an environment in which certain rights, in this
case free speech, are discouraged due to the fear and possibility of certain negative consequences
that may ensue from acting upon those rights. They also make the case that mass surveillance
isn’t as effective as targeted surveillance and that even if it did work it still violates certain core
and ethical principles (War In Context). Advocates of mass surveillance claim that government
surveillance, wiretaps, and storage of metadata is necessary to intercept and prevent terror
attacks and that is effective in doing so. Government surveillance serves a legitimate purpose but
the real question that needs to be answered is if concerns of national security in terms of massive
government surveillance should trump the Constitutional rights of free speech and privacy and
possibly create a chilling effect.
There is a clear need for reform of the government surveillance methodology which
implies that the laws that authorize government surveillance must be abolished or at least
weakened to prevent abuse from the executive. The former option is not feasible because there is
quite obviously still a need for national security as demonstrated by the events of September 11th
and the Boston Marathon Bombings. The latter option is the best course of action, morally and
legally, for the United States to take to ensure that privacy and free speech rights are not trumped
on in the name of national security. The USA Freedom Act is the best and least imperfect
solution to reforming government surveillance because it limits the most abusive powers of the
NSA like the bulk collection of data and dragnet policing without completely eliminating
surveillance. The USA Freedom Act is not a perfect solution but is the first step in reforming
how we approach the issue of government surveillance and the technology both of which are
relatively new and not completely understood just yet. Until Americans better understand the
technology behind government surveillance and the implications of government surveillance,
free speech and privacy rights should be better secured through the implementation of the USA
Freedom Act. Ideally, we should be able to live in a morally right and ethically correct society in
which our free speech, privacy rights and all other civil liberties are guaranteed and free of
government intrusion. The USA Freedom Act is on the right side of the debate morally, legally
and as well as economically. There are alternatives to the USA Freedom Act like keeping the
mass surveillance system as the status quo or supporting the slow expiration of the PATRIOT
Act, but those are not feasible or long-lasting solutions to the problem of government
surveillance.
The USA Freedom Act is a House bill that eliminates the bulk collection of records by
raising the standard that the National Security Agency must meet in order to get a court ordered
warrant and thus requiring the burden of proof to be substantially stronger than the current
systems demands (Electronic Privacy Information Center). However, the language used in the
original bill doesn’t clearly indicate whether it will truly end bulk collection because changes are
too subtle, and may leave room for expansive interpretations by the executive branch.
Furthermore, the proposed legislation claims to close the “backdoor search loophole” which
currently authorizes the NSA to search through volumes of communications to find the data of
specific Americans (Govtrack.us). However, again there is concern that the bill is far too weak
and will give birth to new loopholes if the language of the act is not strengthened and more
concisely formulated. The bill also limits the mass collection of domestic communications by
requiring that the contents of communications can only be located under one of two conditions:
1) if the party is a target of the acquisition or 2) if the communication identifies another plausible
target AND it is acquired to protect against international terrorism or weapons of mass
destruction (Govtrack.us). This provision would ideally prevent the government from collecting
US persons’ communications on the basis of irrelevant and unrelated communications with the
target.
One very important provision of the USA Freedom Act is that it ends the system of secret
law and covert actions of the NSA by requiring the FISA Court to publicly disclose all decisions
and paperwork on cases accepted and denied which makes the government more accountable for
their decisions of who and what they monitor (Congress.gov). That way if there is a national
security concern, it would be acceptable to potentially disband the target’s free speech and
privacy rights because of the evident and non-circumstantial evidence that surrounds his/her
case. Furthermore, if the target feels that he was wrongly targeted and monitored then the act has
created a Special Advocate for the FISA court to argue the civil liberties case before the court
and the Advocate can also appeal FISA court decisions. The USA Freedom Act also grants
electronic service providers the right to issue timely reports regarding the magnitude of the
demands and requests for information made by any government entity in addition to requiring
the government to report to Congress about the extent of their surveillance projects
(Congress.gov). Lastly, the USA Freedom Act changes the sunset date of the FISA Amendments
Act and National Security Letter authority from December 31, 2017, to June 15, 2015, which
parallels with the timing of important PATRIOT Act sunset laws. This measure may not seem
significant at first glance however it is paramount because it provides that debates about existing
and future major surveillance-enabling statutes to proceed all at once.
Table 1. This chart reflects how the United States leads the world in the number of requests they
ask Google for disclosure of user data. With the passage of the USA Freedom Act more data like
this chart will be available for public disclosure. Global Sociology. N.p., n.d. Web. 22 May.
2015.
According to Neil Richards of the Harvard Law Review, whoever comes into contact
with a suspicious person, whether it is brief or extended, becomes subject to surveillance, which
means that innocent citizens are having their privacy invaded and by virtue of the chilling effect
they could possibly censor their speech thus restricting their free speech rights. The chilling
effect is detrimental to scientific and worldly advancement because it restricts creativity and free
expression (Pen International). Journalists are especially concerned about government
surveillance because it impedes their “ability to serve as a check on government abuse” (Sinha).
Journalists and news media play the role of watchdog for the people and are expected to report
government abuses and to keep the citizenry informed of potential injustices in order to facilitate
a truly democratic debate and environment. However due to government surveillance there is a
chilling effect that surrounds the journalists and reporters because they often lose their sources
and are forced to change their journalistic practices. These journalistic practices include, but are
not limited to, increased use of advanced privacy-enhancing technology, decreased dependence
on electronic tools, and modified use of conventional methods of protecting sources like making
“fake travel plans” and the use of “burner phones”(Sinha).
Figure 1. This illustration is used as part of Congressman Jim Sensenbrenner's campaign in
support of the USA Freedom Act. Digital image. Http://sensenbrenner.house.gov/. N.p.,
n.d. Web. 24 May 2015.
According to Pen International, the National Security Agency surveillance forces writers
to self-censor. According to a survey of 520 American writers, PEN came out with results that
indicated that at least one in six writers avoided a certain topic of discussion due to fear of being
flagged for surveillance and so this restriction of expression also limits the flow and exchange of
ideas and information. Economically speaking, this is detrimental to the American system of
laissez-faire in which ideas are not supposed to be regulated in a free marketplace. This problem
affects all individuals but more so intellectuals and corporations because they will limit
themselves and their expression due to fear of prosecution because of the fact that they are
always having their associations and connections monitored. Also, international and domestic
clients do not feel safe sharing their personal information with companies due to the fear of the
National Security Agency’s surveillance and the negative press associated with it and so
consequently the U.S. cloud-computing industry could potentially lose $22 billion to $35 billion
over the course of a decade (Zara). Ladar Levison is the founder of Lavabits, which is a
discontinued encrypted webmail service that is under suspension due to its advanced encryption
techniques that make it near impossible for even intelligence agencies to crack. He is quoted to
have said, “Instead of having Microsoft as one of [cloud-computing] leaders, there’d be a French
company there, or German or Japanese company… It would just be a loss to the economy and a
loss to all the types of product development and innovation we’ve seen overall.” On a separate
occasion, Levison expressed his blunt distaste for government surveillance measures when he
stated, “This experience has taught me one very important lesson: Without congressional action
or a strong judicial precedent, I would strongly recommend against anyone trusting their private
data to a company with physical ties to the United States”. The provisions of the USA Freedom
Act would overcome the economic loss of businesses and debilitate the chilling effect that
restricts the First and Fourth Amendment rights of free speech and privacy because it will end
the bulk collection of data and dragnet policing measures.
The USA Freedom Act and the call for reform the government surveillance system are
not only legally sound but also morally correct. The law is on the side of halting government
surveillance because it threatens the constitutional rights of the First and Fourth Amendment.
These civil liberties of free speech and right to privacy are an essential part of the American
identity as demonstrated through court cases like Schenck v United States and Mapp v. Ohio. It is
morally and ethically wrong to have government surveillance because of the fact that it threatens
the civil liberties that the United States Constitution guarantees to all citizens. The mass
surveillance procedures put into practice are one-way observations that not only have the
potential to be abused but is also an expression of control, which can create an imbalance
between the watched and the watcher (Wu). Also, Supreme Court case Clapper v. Amnesty
International had just recently ruled that the bulk collection of data by the NSA was in fact
unconstitutional. There continue to be more court cases challenging mass surveillance through
the court system and litigation (Wikimedia v. NSA).
Although USA Freedom Act may not be the most perfect solution to the issue of national
security measures in the face of free speech and privacy concerns, it is arguably the least
imperfect solution to the problem. An alternative to the USA Freedom Act is to not reauthorize
the USA Patriot Act and either to let it die entirely or to allow the provisions with the most
backlash to expire. For example, section 215 of the USA Patriot Act is set to expire on June 1st,
2015 and there are several organizations that are intent on allowing the provision that allows
investigators to obtain books, records, papers, documents and other items for foreign intelligence
investigations to expire (Jaycox). Advocates of this position cherry-pick provisions of the
PATRIOT Act that they particularly do not like and focus on addressing those issues which they
believe will be more effective in reforming government surveillance slowly but surely
(Generation Opportunity). However, allowing certain provisions to expire and not disbanding or
declaring them unconstitutional is analogous to only partially fixing the problem. If section 215
is allowed to expire what is to stop the government from reauthorizing or passing legislation that
has the same effect but in a different manner? The best option for Americans is to pass
legislation that disbands or restricts the behavior they are trying to discourage, which in this case
is government surveillance.
Another alternative is to keep the status quo and to reauthorize the PATRIOT Act.
Advocates of this position tend to support mass surveillance measures and claim that government
surveillance, wiretaps, and storage of metadata is not only necessary but also constitutionally
sound as well as efficient in intercepting and preventing terror attacks. Rogers, head of the NSA,
stated “we need to maintain an ability to make queries of phone records in a way that is agile and
provides results in a timely fashion. Being able to quickly review phone connections associated
with terrorists to assess whether a network exists is critical”(Watson). Supporters of mass
surveillance argue that “mere collection” of data is not invasion (Yost). It is not unusual to find
government officials to be the most convincing and strongest advocates of government
programs. Justice Department lawyer H. Thomas Byron and supporters of government
surveillance make the case that the government takes the necessary measures to ensure privacy
and security in the process of government surveillance and that the files are located only after the
FISA Court judge has authorized the NSA to do so. Byron argues that the steps “the government
takes to minimize any privacy violations should ease concerns” and that not only the
administration but Congress and the Foreign Intelligence Surveillance Court have all authorized
and approved of the program (Johnson). Therefore, privacy and free speech concerns are
addressed and not treated lightly according to NSA representatives.
The executive branch and NSA claim that bulk data collection and mass surveillance are
effective in thwarting at least 50 attacks however there is no evidence to support that claim
(Terbush). Judge Richard Leon stated,
Given the limited record before me at this point in the litigation — most notably,
the utter lack of evidence that a terrorist attack has ever been prevented because
searching the NSA database was faster than other investigative tactics — I have
serious doubts about the efficacy of the metadata collection program as a means of
conducting time-sensitive investigations in cases involving imminent threats of
terrorism.
However some experts make the claim that it is difficult to measure just how many cases of
potential terrorism were avoided or prevented due to extensive national security measures and
surveillance put into play by the United States government.
Opponents of the USA Freedom Act also make the claim that act is far too weak and will
not address the problems it claims it will solve. The bill is not only endorsed by the Director of
National Intelligence, James Clapper, who has yet to be prosecuted for lying to Congress about
the NSA’s unconstitutional bulk collection of phone records but also not effective. The language
of the USA Freedom Act is already very ambiguous and conflicting and it hasn’t even been
passed yet. Anti-USA Freedom Act supporters like CREDO claim it “adds loopholes in Section
215 of the PATRIOT Act, such as the authority to collect phone records in other than daily
production or to use a corporation, organization, or government entity as a specific selection
term, which may still permit bulk data collection”. The bill is also predicted to expand the
emergency provisions currently approved by the Foreign Intelligence Surveillance Court which
will result in authorizing the NSA to retain data and introduce it as evidence even if the courts do
not approve of the NSA's petition to collect it (CREDO). The bill allows for oversight but
doesn’t prevent or warrantless searches by the FBI of searches on the content of the types of
communication collected.
The best and most imperfect solution to the problem of balancing the constitutional rights
of free speech and privacy is to pass the USA Freedom Act because the act is already on the
house floor and if we strengthen the act through amendments we can ensure that the executive
branch isn’t too powerful and is kept in check until the technology behind the surveillance is
better understood. Once the technology is understood we can place laws and restrictions to
prevent abuse. There will always be loopholes in laws and that is just a part of the legal process.
The USA Freedom Act will likely have its struggles in terms of language that may allow for
loopholes, resistance by the national government and partially effective results but it is still the
best and least imperfect solution as of today. There is a legitimate national security concern to
provide for the national defense as well as moral obligation to protect the First and Fourth
Amendments of free speech and privacy. Therefore, the USA Freedom Act is a balance of the
two needs and is not a perfect solution but it is far better than leaving the situation as the status
quo.
Works Cited
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