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Matthew Greene ENGL 1102 Malcolm Campbell 3/12/14 Big Brother Nation: Has the NSA Violated Our

Civil Liberties? How safe do you feel? Today, nearly ninety percent of US adults own a cell phone with fifty-eight percent being web-capable smartphones (Mobile). On these devices, people are making phone calls, sending text messages, and browsing the internet. When you do a Google search or log into Facebook, how much privacy do you think you have? What if I told you that certain laws allow the US government and law-enforcement entities to see nearly everything you do on your mobile devices or over the web? Since the tragedies on September 11th, our government quickly passed legislation meant to protect us from future terrorist activities. However, as more power is given to our government, our civil liberties become increasingly threatened. Having said this, let me ask again: how safe do you feel? Introduction In the past few decades we have seen a massive rise in communication technology. Wired telephone lines have given way to cell phones and computing devices are no longer tethered by an Ethernet cord. As a result, many of us myself included tend to place more of our private information online, whether it be trivial information on social media and search engines or more sensitive material such as banking information or documents stored in a cloud network. Unfortunately, as technology has grown and more of our information is stored online, laws meant to protect our privacy have been unable to keep pace with innovation. With this in mind, I

believe our government should update its policies and laws in order to ensure our privacy remains intact and the government power remains in check. Privacy Laws The foundation for our basic civil liberties is found in the US Constitution under the Bill of Rights. Particularly, under the Fourth Amendment, it the right of the people "to be secure in their persons, houses, papers, and effects, against unreasonable search and seizure" and this right cannot be violated without warrant and probable cause (Bill of Rights). In 1986, the scope of this Amendment was extended to include electronic and mobile communication with the writing of the Electronic Communications Privacy Act, or ECPA for short. The purpose of ECPA was to place further restrictions on government and other entities in regards to wiretapping of phone calls and electronic data communications and was designed to be a fair middle ground between the needs of law enforcement and citizens' expectation of privacy (Privacy). In order to establish this middle ground, ECPA was constructed as a combination of three laws: the Wiretap Act, the Stored Communications Act, and the PenRegister Act. The Wiretap Act provides provisions which state that it is illegal for someone to purposefully intercept, or attempt to intercept any wired, oral, or electronic communication via any electronic device. The exception to this act, however, is when law enforcement is given authorization through a warrant or when consent is given by at least one party (Wiretap Act). The Stored Communications Act provides privacy protection for electronic communications which are "at rest." Essentially, this means any email or other electronic communication which is not in transit is protected from unwarranted access. However, material

in motion can be easily collected if authorized through a subpoena (Stored Communications Act). The Pen-Register Act was established to deal with the issue of collecting metadata from electronic communications via Pen Register or Trap and Trace devices and software. Metadata in this context is non-content information about a particular communication such sender/receiver phone numbers or IP addresses. Since this information does not contain communication content, the Supreme Court holds that there is no reasonable expectation of privacy; therefore this information is under fewer restrictions that actual content (EPIC). Unlike the Wiretap or Stored Communications Act, there is no provision in the Pen-Register Act which applies to the government when it uses pen registers/trap and trace devices. This act essentially gives government license to collect metadata at will, but condones any other entity from doing the same (Pen-Register Act). Current Privacy Issues After the tragic events of September 11th, 2001, the US government quickly drafted and passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, or more commonly known as the USA PATRIOT Act. The purpose of the PATRIOT Act was to greatly strengthen law enforcement's ability to intercept and prevent future terrorist activities. In order to do so, under Title II, law enforcement officials are allowed to conduct surveillance operations and intercept communications on those related to terrorist activities. Along with this, Title V increased the strength of the National Security Letter (NSL), which is used to demand information related to an investigation be

released to authorities without warrant or probable cause(PATRIOT ACT). Furthermore, these letters come with a gag order which prohibits those being investigated from knowing about it. While the PATRIOT Act was designed to significantly increase the security for US citizens, it has been highly debated that this law gives the government too much power and violates certain civil rights. Since an NSL does not require any judiciary review or warrant to be issued, anyone could be subject to investigation under the guise of "general surveillance," which some argue violates the Fourth Amendment. In fact, an internal FBI audit was released in 2007 which reveal over 1000 misused National Security Letters since 2002 (Solomon). The Debate Since the enactment of the Patriot Act, there has been much debate on whether Americans should accept a lack in privacy in exchange for greater security. This debate has gained even more traction with the current leaks of NSA surveillance information which was provided by Edward Snowden. According to, some say the governments primary job is to secure the general welfare of its citizens and privacy cannot be claimed as a fundamental right in the Constitution (Debatewise). Eric Posner, a professor at the University of Chicago Law School and writer for the New York Times, states in an article that there is an inescapable tradeoff between security and liberty. It is his thought that "technological advances have put greater pressure on the capacity of government to protect its citizens from threats" and " as we lose some of our security, it is natural and proper for government to increase surveillance and other security measures at the margin, and to some extent the Patriot Act was just making up for lost time (Posner)."

While I would agree the PATRIOT Act has provided excellent protection in the aftermath of 9/11, the threat of terrorism has diminished over the years and government surveillance has now turned its attention to domestic affairs. The laws as they stand today, gives government too much power which can easily be abused, as we have seen earlier. On the other side of the debate, Jeff Jarvis, professor at the City University of New York, writes in his article for The Guardian that the argument shouldn't be about privacy at all. "Instead," argues Jarvis, "I think this is an argument about authority not so much what government (or anyone else) is allowed to know but what government, holding unique powers, is allowed to do with what it knows (Jarvis)." It is his opinion that while collection of metadata (such as sender/receiver information of a text message, emails, or letters) is not necessarily a bad thing, the use of this data should be regulated in order to protect our Fourth Amendment rights. In this regard, I'd have to agree with Jarvis. Metadata is in the public domain and cannot be considered private information. However, what is done with this information should be highly regulated in order to protect personal privacy. In the very least, make people more aware that this information is being collected. Conclusion When discussing this topic with friends, Ive heard many say they support government surveillance because they have nothing to hide. However, regardless of whether I have anything to hide or not, I reserve the right to keep my information private unless permission is explicitly given to access it. To place the topic in a different context, I would ask how a person would feel about wearing a microphone and having a camera follow them 24/7, and have that information recorded without their consent. I believe there would be very few who would

consent to that, however, with the current laws this is basically how information is collected online. With the increasing evolution of communication and mobile computing technologies, the current laws, which were meant to protect our privacy, have thus far been unable to keep up. Our government has taken advantage of these outdated laws by furthering their ability to collect our personal information without being restricted under the Fourth Amendment. Though it can be considered beneficial to have these laws which may provide greater security, giving the government free reign of any kind with our civil liberties is a slippery slope which can quickly steer away from protecting the people and steer the US more towards an Orwellian Nation. In order to prevent such a situation from happening, current laws need to be updated to ensure that our information remains private and the reach of government stay regulated.

Works Cited

"Bill of Rights Transcript Text - Amendment IV." Bill of Rights Transcript Text. N.p., n.d. Web. 18 Sep. 2013. <>. "EPIC - Electronic Privacy Information Center." EPIC. Electronic Privacy Information Center, n.d. Web. 10 Mar. 2014. <>. Grabianowski, Ed. "How the Patriot Act Works." HowStuffWorks. N.p., n.d. Web. 6 Mar. 2014. <>. Jarvis, Jeff. "The Primary NSA Issue Isn't Privacy, It's Authority." Guardian News and Media, 30 Dec. 2013. Web. 10 Mar. 2014. <>. "Mobile Technology Fact Sheet." Pew Research Centers Internet American Life Project RSS. N.p., n.d. Web. 18 Mar. 2014. <>. Pen_Register Act. N.p.: n.p., n.d. General Prohibition on Pen Register and Trap and Trace Device Use; Exception. LII / Legal Information Institute. Web. 10 Mar. 2014. <>. Posner, Erick. "There's Still A Need." The New York Times. The New York Times, 7 June 2013. Web. 9 Mar. 2014. <>.

Privacy: An Overview of the Electronic Communication Privacy Act. N.p.: n.p., n.d. Title III: Prohibitions. Congressional Research Service. Web. 10 Mar. 2014. "Privacy vs Security." Debatewise. N.p., n.d. Web. 20 Sept. 2013. privacy-vs-security/>. Solomon, John. "FBI Finds It Frequently Overstepped in Collecting Data." Washington Post. The Washington Post, 14 June 2007. Web. 14 Mar. 2014. <>. Stored Communications Act. N.p.: n.p., n.d. Unlawful Access to Stored Communications. LII / Legal Information Institute. Web. 14 Mar. 2014. <>. UNITING AND STRENGTHENING AMERICA BY PROVIDING APPROPRIATE TOOLS REQUIRED TO INTERCEPT AND OBSTRUCT TERRORISM (USA PATRIOT ACT) ACT OF 2001. N.p.: n.p., n.d. Title II: ENHANCED SURVEILLANCE PROCEDURES. Web. 10 Mar. 2014. <>. UNITING AND STRENGTHENING AMERICA BY PROVIDING APPROPRIATE TOOLS REQUIRED TO INTERCEPT AND OBSTRUCT TERRORISM (USA PATRIOT ACT) ACT OF 2001. N.p.: n.p., n.d. Title V: REMOVING OBSTACLES TO INVESTIGATING TERRORISM. Web. 10 Mar. 2014. <>.

Wiretap Act. N.p.: n.p., n.d. Interception and Disclosure of Wire, Oral, or Electronic Communications Prohibited. LII / Legal Information Institute. Web. 14 Mar. 2014. <>.

Good job Matt! You clearly have a vast knowledge and have done extensive research on the subject. Great job on your sources, examples and showing both sides of the situation. Some advice would be to reword the thesis just a little bit. Overall great work!