You are on page 1of 12


John Paradise American Dilemmas 2/10/2014 Should US legislation on digital surveillance be reformed in light of the Snowden Files? The NSA domestic surveillance controversy revolves around a set of US legislative policies and a series of classified documents leaked by Edward Snowden with the help of reporters Glenn Greenwald and Laura Poitras. Documents leaked by Snowden suggest the internal oversights set up to keep the agency in check have failed. As a result, data can accidentally be collected from innocent US citizens in the process of attempting to locate legitimate terrorist activities. Consistent with the Ben Franklin axiom, Any society that would give up a little liberty to gain a little security will deserve neither and lose both, the debate between freedom and the securities set up to protect it lies at the core of this controversy and is one that inevitably needs to be had. The United States Constitution was designed to form a nation ruled by law not a nation ruled by men. The purpose of these laws is to protect a citizens individual rights from being violated. Individual citizens have a moral duty to defend these rights when they are violated. The tragedy in New York City on September the eleventh somberly reminded the United States that there is a tangible need to protect the rights that they fought so hard to obtain. There are two competing social problems engendering the argument of whether or not to reform these laws. Those in favor of government reform point to the misuse of government power while others stress the important role these programs play in upholding our National Security.

Many politicians, organizations, non-profits, and individual citizens believe that despite internal oversights put in place to ensure the collected datas proper use, a mismanagement of information is still possible. Serious civil liberties concerns remain about the specific statutory language authorizing roving intelligence wiretaps. (Sanchez 2014) A study done by the Associated Press-NORC Center for Public Affairs Research found that approximately sixty percent of Americans disapprove/oppose with the courts processes and its decision to allow the government to collect and keep data records of US citizens, including those not suspected in terrorism. Others claim that the fact the data is collected on seemingly innocent Americans in the first place is counter intuitive the programs intended purpose and more importantly it is a violation of our individual rights. The same study showed that over fifty percent of Americans are moderately or strongly opposed to government collection of online communications, internet browsing history, and information that identifies who people are communicating with online. There is also an attitude of distrust in the government that is growing amongst citizens. This lack of trust is likely due to scale of secrecy surrounding the programs and the lack of transparency by officials when questioned under oath. Edward Snowden has pointed out that he carefully evaluated every single document I disclosed to ensure that each was legitimately in the public interest. Harming people isnt my goal. Transparency is.(Harding 2014) The documents released by Snowden have exposed many instances of government misuse of power, i.e. James Clapper lying, on record, to Congress about the scope and effectiveness of the programs in place. They furthermore revealed that numerous private businesses, such as Verizon for example, have been forced by court orders to hand over their secure data on individuals and several documents

suggest that businesses have even willingly instigated this operation. This has caused citizens to ask how safe their information actually is on the Internet. Individuals, who refuse to wait for legislation, have turned to encryption to protect their digital rights. The Founding Fathers used encryption in order to communicate under the nose of the British. Ideally, it ensures a completely secure communication between individuals. Lavabit was Ladar Levisons website that offered encrypted and secure email in a convenient way for users. He was approached and asked to hand over his information to authorities. Levison disagreed but was unfortunately forced to shut down. PGP & Tor are two recommended encryption services. PGP stand for Pretty Good Privacy and was the mode of communication chosen by Snowden when he reached out to Greenwald and Poitras Many on the other side claim that this is what is necessary to protect our individual rights from terrorism, which was officially defined for the first time in the Patriot Act. Senator Dianne Feinstein originally commented on the programs saying, This is called protecting America. The Director of the NSA, Keith Alexander, Former NSA general counsel member, Stewart Baker, and the US Director of National Intelligence, DNI, James Clapper as well as many others express the necessity for these programs and warn about the dangers that amending them might cause. They argue that there are intense rules and regulations as well as a Foreign Intelligence Surveillance Court set up to provide rigorous oversight and ensure no misuse of power. Following the World Trade Center attacks, agency officials asked themselves why all their intelligence gathering capabilities failed and proposed these programs as solutions. Stewart Baker explains it like this; We identified ten to fifteen genuine failures where a better system would have prevented the attack. I dont think its unreasonable to say well do those things.

Failing to learn from your mistakes is the first sign that you are not really serious or being particularly effective in dealing with your needs. (NSA Files) The survey conducted by the Associated Press-BORC Center for Public Affairs Research has shown that even more than partisanship, age divides public opinion on the need for transparency of U.S intelligence operations. (Thompson 2013) Sixty percent of Americans under the age of thirty believe it is more important that the government publically prove its intelligence operations do not violate civil rights. It drops to forty-two percent of Americans between the age of thirty and forty-four and it continues to decline with age. These statistics along with the bipartisan nature of this issue suggests that ideological differences between people in favor or opposed to reform is not between conservatives or liberals but rather a between the mindset of two distinct generations. The explosive rise in popularity and usefulness of the Internet has made it so that this issue affects the majority of citizens. Anyone who participates in global digital ecosystem is affected by this problem. A variety of government officials, private businesses, nor-profit groups, journalists, and even individual citizens are in favor of reform. Rand Paul, Ron Wyden, Thomas Drake, the U.S Department of Justice, and many more have called for, supported, even drafted legislation supporting reform. Yahoos CEO, Marissa Mayer as well as companies like Google, Apple, Verizon, and others have requested government transparency concerning past legal interactions. The American Civil Liberties Union (ACLU), American Bar Association, Electronic Frontier Foundation (EFF), and the Electronic Privacy Information Center (EPIC) have all spoken out against the legality of the NSA programs. Journalist like Glenn Greenwald and Laura Poitras are fighting to ensure the First Amendment right to free speech is protected especially when it comes

to disclosing information critical of government programs. Many individuals have taken significant risk in order to ensure the American public is informed about these government programs and how they are being misused. Edward Snowden has since been exiled and turned enemy of the state since the leak but hes not the first to suffer this fate. Thomas Drake, a former high ranking official at the NSA, and many other whistle blowers have leaked documents after realizing that the oversights in place have failed. The main problem this group has is the scope of the data gathered on them and the fact that they had no idea it was being gathered. The on goings of these programs are not subject to public debate. They are instead subject to internal oversights to check and balance any misuse of power. U.S. congresswoman Zoe Lofgren is another politician who wants to assure that American peoples right to unreasonable searches and seizures is protected. She believes, that system in the constitution has gone seriously off the wheels when you look at whats happened here in the spy agencies. Jameel Jaffer, Deputy legal director for the ACLU, is astounded by the fact that the government has been collecting information for as long as it has and believes that kind of program is completely inconsistent. He points out that the NSA is now able to create personal profiles on people plus learn the connections between individuals. President Barack Obama, many high ranking military officers, as well as a large portion of politicians support the legislation is place, claiming is it essential to National Security. President Obama, as our Commander in Chief, understands better than anyone the need for proper surveillance against any threats that the United States faces. He reminds the public as a senator, I expressed a healthy skepticism about the programs. He also realizes that we have to strike the right balance between protecting our security and preserving our freedoms. (C-SPAN 2013) The Presidents DNI James Clapper and the agencys director Keith Alexander see no

need for reform and stress the importance of the programs in place. They also assure that no innocent Americans have been intentionally spied on. The NSA surveillance controversy is a result of the governments solution to another social problem, Terrorism. The majority of legislation, mainly the Patriot Act, allowing for NSA programs to operate, was drafted after the tragedy on September eleventh. The threat of terrorism and state of induced fear from the attacks constitutes arguably the most significant US social problem of this century so far. Stewart Baker hits the nail on the head when he says, You can say, well, show me proof that this really works. I can show you proof that the lack of this really failed. When you loose 3000 people that proof is pretty compelling. Ensuring that disasters like that do not happen again is the incentive behind the surveillance programs. There is also a legitimate need for surveillance in the crime solving process. Modern technology can help law enforcement track down criminals more effectively then ever before. The NSA The National Security Agency was established on November 5th, 1952 to handle information cryptology in the growingly digital world. It enables Computer Network Operations (CNO) in order to gain a decision advantage for the Nation and our allies under all circumstances. ( Computer Science in general is still emerging as a field and the concept of the Internet will not be around for a few decades. The Foreign Intelligence Surveillance Act (FISA) of 1978 was passed following the Watergate scandal. President Richard Nixons misuse of government power showed a need for further legislation to maintain the system of Checks and Balances that is essential for our government. It established a Foreign Intelligence Surveillance Court as an oversight measure. The FISA Amendments Act of 2008 amended the FISA. (Matthew 2009) Computational technology continues to rise in popularity and usefulness, offering many analytical advantages

over the last generation of technology. The inception of the Internet is just around the corner but still wont be invented for a few years to come. The Patriot Act was passed following the September 11th attacks To deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes. Specifically section 214, 215, and 216 allow of the collection of data relevant to terrorist investigation. This act officially defined the term terrorism and established the use of National Security Letters. (Department of Justice) The Patriot Act has had a mixed reception; according to the Bill of Rights Defense Committee, as of October 2004, four states (Alaska, Hawaii, Maine and Vermont) and 354 countries and cities had enacted resolutions expressing concern about the Patriot Acts effect on their citizens civil liberties. (Sward 2005) As computers and the Internet become an increasingly relevant part of life for people, the Governments task to find and stop terrorism plots becomes increasingly difficult. It is akin to searching for a needle in a haystack. Independent contractor Edward Snowden met with journalists Glenn Greenwald and Laura Poitras at the Mira Hotel in Hong Kong on June 3, 2013. With him are four encrypted laptops containing highly classified NSA documents that Greenwald would aid in publishing over the coming months. Snowden makes his philosophy obvious when he says that he does not want to live in a world where everything that I say, everything that I do, everyone that I talk to, every expression of love or friendship is recorded. (Harding 2014) The leaking of the Snowden Files has sparked a global debate about the scope of surveillance programs and government transparency. The following is a list of the laws, policies, and programs, both major and minor, that relate to this controversy: Foreign Intelligence Surveillance Act (FISA) of 1978, Executive Order

12333, Patriot Act of 2001 (Sections 214, 215, 216), FISA Amendments Act of 2008 (Sections 702, 703, 704), National Security Letters, FISA Court Orders. Ron Wyden and Rand Paul have drafted the Intelligence Oversight & Reform Act to set up stricter agency oversights. This is all part of a larger debate that has been a long time coming. Thomas Drake believes were actually having the debate for the first time since 9/11. I mean were supposed to be a democracy, were supposed to be a constitutional republic where the decisions are made, especially ones that affect ones rights, liberties, and freedoms. Theres been no true discussion. Public debate is essential to a functioning democratic Republic.

Works Cited Aid, Matthew M. The Secret Sentry: The Untold History of the National Security Agency. New York: Bloomsbury, 2009. Department of Justice. The USA Patriot Act: Preserving Life and Liberty. Web. 16 Feb. 2014. Harding, Luke. The Snowden Files: The Inside Story of the Worlds Most Wanted Man. New York: Vintage Books, 2014. "National Security Agency / Central Security Service." The NSA/CSS Mission. N.p., n.d. Web. 29 Jan. 2014. Obama, Barack. President Obama discusses domestic surveillance. Anonymous, 26 Oct. 2013. C-SPAN. Web. 16 Feb. 2014. United States. Congress. House. The Foreign Intelligence Surveillance Act of 1978, H.R. 7308. Washington: U.S. Govt. Print. Off., 1978. Print. United States. Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008. Washington, D.C.: U.S. G.P.O., 2008. Print. United States. Government Printing Office. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001. Washington, D.C.: U.S. G.P.O., 2001. Web. Sward, Ellen E., State and Local Resistance to the Patriot Act (September 16, 2005), 1 KU Dialogues 1 2005. Available at SSRN: Sanchez, Julian. Leashing the Surveillance State How to Reform Patriot Act Surveillance Authorities. Cato Institution 675 (201): 32. CATO. Web. 29 Jan. 2014.

Thompson, Trevor. Balancing Act: The Publics Take on Civil Liberties and Security: A Trend Study from the AP-NORC Center for Public Affairs Research. Web. 16 Feb. 2014