***For images and tables, refer to the downloadable files.

 

Fyezah Nazir 

Jonathan Keeperman

Writing 39C

22 April 2015

Uncle Sam: Savior or Spy?

         The superpower of America was founded on the principles of the U.S. Constitution, which is not only the shortest but also the oldest constitution in the world. This is due to the to the addition of the Bill of Rights, which outlines and guarantees the basic civil liberties and civil rights of all American citizens under the law. The United States Constitution would not have been ratified without the inclusion of the Bill of Rights and it is for that reason, along with the formal amendment process, that the United States Constitution is considered a “living document”(Britannica). Consequently, Americans are very protective and possessive of their civil liberties especially those granted in the First Amendment (freedom of speech, assembly, religion, and press). First Amendment cases are becoming more prevalent as technology advances and as the scope of the government increases. Gene Policinski, senior vice president and executive director of First Amendment Center, makes the case that “technology takes freedoms forward, [and the] law catches up”. There is a constant battle and power struggle between individuals and the national government. This tug-of-war phenomenon between the citizens and the federal government extends back in time to even the early days of America.

         Wikipedia, Wictionary, and Wikibooks are familiar words to the world of education, research and scholars. It is for that reason that the case spearheaded by the Wikimedia Foundation against the National Security Agency (NSA) gained much national attention. On March 15, 2015, Wikimedia, along with eight co-plaintiffs like Amnesty International and Human Rights Watch, filed a lawsuit to be represented by the American Civil Liberties Union in their claim that the government’s mass surveillance program is unconstitutional (Ingram). The official Complaint for Declaratory and Injunctive Relief states that the plaintiffs are suing the Justice Department, more specifically the NSA, for allegedly violating the U.S. Constitution’s First Amendment, which protects the freedom of speech, and the Fourth Amendment, which protects against and provides conditions for unreasonable search and seizures (Wikimedia v. NSA).

         ACLU is challenging the government’s mass surveillance program that uses upstream surveillance to essentially monitor and seize all Internet and telephone communications. According to Stephen Vladeck, a professor at the American University Washington College of Law and an expert on national security law, anyone who uses the Internet, makes a phone call, posts on social media, or makes a Skype video call is part of the government surveillance process and is having that data stored and collected (NPR). This data can be collected and called upon whenever the government deems it necessary according to legislation like the USA PATRIOT Act and the FISA Acts. According to the official complaint written by the ACLU, the interception and storage of data is accomplished “by tapping directly into the internet backbone inside the United States—the network of high-capacity cables, switches, and routers that today carry vast numbers of Americans’ communications with each other and with the rest of the world” (ACLU). ACLU claims that the plaintiffs have had and continue to have their sensitive associations and communications copied, monitored, saved and stored by the NSA, which impedes and obstructs the ability of the plaintiff to secure confidentiality of their international contacts. These contacts include but are not limited to “ journalists, colleagues, clients, victims of human rights abuses, and the tens of millions of people who read and edit Wikipedia pages”(ACLU). However, the NSA claims that upstream surveillance is authorized by the Foreign Intelligence Surveillance Acts of 2008 (FISA) and that the surveillance does not in fact violate First Amendment rights.

Figure 1. A protester marches with a red piece of tape over his mouth during the Stop Watching Us Rally protesting surveillance by the NSA in front of the U.S. Capitol building in Washington, D.C. on October 26, 2013. Digital Image. Shelley, Allison. 2013. Latin Post. Web. 21 Apr. 2015.

 

         The court case Wikimedia v. NSA, although relatively recent and in its early stages, is not the first case to challenge government surveillance efforts on the basis of First Amendment rights. ACLU v. NSA and Clapper v. Amnesty International are two other court cases that attempted to challenge the government surveillance programs and the legislation that authorizes such monitoring and storage of data. Both court cases were said to not have standing to sue against the NSA or to challenge the Foreign Intelligence Surveillance (FISA) Acts and the USA PATRIOT Act (Vladeck). There is a clear need for compromise and reform of the government surveillance programs. The call for reform of the government surveillance programs is not a new and original concept because there have been several attempts to either completely abolish or simply limit the surveillance and wiretap programs. In November of 2014, the United State’s Senate blocked the passage of the USA FREEDOM Act. The USA FREEDOM Act (Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-Collection, and Online Monitoring Act) aimed to switch from the intrusive forms of government surveillance like wiretaps and upstream surveillance techniques to less invasive forms of monitoring like “pen registers or trap and trade devices” (Library of Congress). There is a legitimate concern on the behalf of the federal government in carrying out their duty to protect and defend national security and prevent terrorism (The Wall Street Journal). The question that comes into conflict and is the source of First Amendment and government surveillance debates is how should America as a society balance freedom of speech, one of the most cherished civil liberties of the American people, and the government’s duty to provide for the national defense and protect the nation from terrorist attacks like the Boston Marathon bombing and the September 11^th attacks on the World Trade Center. Simply put the million dollar question at hand is: How should the United States balance the government’s duty of protecting national security and defense, through the means of government surveillance, without fostering a chilling effect thus trumping the First Amendment rights of American citizens?

         Americans have dealt with the question of just how much power should the government have and if they should widen or narrow the scope and duties of the government. In this debate, the question of privacy, freedom of speech and intrusion are questioned and considered. The United States government has had a history of denying free speech protections due to reasons that concern national or domestic security. The United States censors and restricts certain speech. Speech that is considered “protected” or “allowed” has changed over the years and is constantly changing. Certain speech that used to be restricted but is now considered protected speech includes flag burning, animal cruelty videos, and some forms of pornography (Liptak). In this new realm of Internet, technology, and media there is quite a lot of controversy over what is protected speech and what should be or is restricted speech.

         In response to the September 11^th attacks, there has been an increase in national security measures including the monitoring and surveillance of Internet browser searches/history, email exchanges and phone calls. This is due to the passage of the USA PATRIOT Act ("Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001"). The USA PATRIOT Act was passed by the Bush Administration just a few weeks after the September 11^th attack on the World Trade Center in 2001. There is much controversy surrounding the rushed passage of the PATRIOT Act. Representative Bobby Scott (D-VA 3^rd District) shared his thoughts on the bill by saying,

I think it is appropriate to comment on the process by which the bill is coming to us. This is not the bill that was reported and deliberated on in the Committee on the Judiciary. It came to us late on the floor. No one has really had an opportunity to look at the bill to see what is in it since we have been out of our offices.

         Bobby Scott is not alone in his grievance against the timing passage of the PATRIOT Act. Jennifer Van Bergen, a progressive investigative journalist and legal/political commentator, claims that the USA PATRIOT Act was already written and prepared before the 9/11 attack and that the bill passed quickly through Congress because it was “riding a wave of fear that spread over the nation” (Van Bergen).” Critics of the PATRIOT Act make the case that there was a strong emotional response to the 2001 terrorist attacks and so that paved the road for increased national security measures because Americans were less likely to question and more responsive to calls for increased government intervention and more effective protective measures for the nation.

         There continue to be supporters of the strong implementation of the USA PATRIOT Act like PAX American Institute who believe that the act is, “the most comprehensive piece of anti- terrorism legislation ever passed...one of the major reasons why another terrorist attack had not occurred in America”(PAX America). However, many people and organizations, like the Center for Constitutional Rights and the Bill of Rights Defense Committee, are now questioning the act based on the allowances and legal rights it gives the government in monitoring and spying on the American constituency. Americans are guaranteed a reasonable amount of privacy as demonstrated in Katz v United States and it is implied in the Fourth Amendment of the United States Constitution as well. Therefore, Americans are not so keen to the idea that a large part of their lives, all their interactions and associations are being watched and evaluated. The language of the USA PATRIOT Act basically makes most Americans vulnerable and susceptible to wire tapping and surveillance. 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. However, it is important to distinguish that is not privacy that the First Amendment defenders are concerned with but rather it is this concept known as the “chilling effect”. The chilling effect is a phenomenon that is described as 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. For example, if there is the possibility that the government is monitoring and watching the people’s every move then they are less likely to act freely. This is detrimental to scientific and worldly advancement because it restricts creativity and free expression.

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. Global Sociology. N.p., n.d. Web. 22 Apr. 2015.

 

Figure 2. The American Civil Liberties Union (ACLU) depicts the American Patriot as a robot and spy for the government. Images like these are not uncommon to find in the debate over government surveillance, the chilling effect and First Amendment rights over free speech. Digital image. American Civil Liberties Union. American Civil Liberties Union, n.d. Web.

 

         This issue is urgent because government surveillance is becoming increasingly restrictive and silencing new ideas and ideologies that could potentially help forward and mobilize society. 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). 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. 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.

         Free speech libertarians see this form of upstream surveillance and its chilling effect as unacceptable for a free democracy and an open marketplace whereas free speech dignitaries believe that is completely acceptable for the NSA to rummage through emails and calls if it means they are successful in preventing terrorism. They think it is a reasonable price to pay for national security. The players in the debate are the government entities and corporations that support/conduct the surveillance like the NSA, Google AT&T on one side of the debate and on the other side of the spectrum are researchers, journalists, private companies, and citizens.

Figure 3. Cartoon depicting Uncle Sam as an interrogator and as a watchdog. Digital image. Web Visions. Web Visions, n.d. Web.

 

         Government surveillance is sometimes regarded as a necessary evil because although it may disgruntle Americans and make them feel uncomfortable, there is still a legitimate motivation for the government to be able to locate information and evidence on possible terrorist connections and relations. Vice Admiral Michael Rogers is quoted to have argued for the necessity of the NSA to have access to vast amounts of metadata in order to ensure that the government can keep Americans safe from terrorism (Watson). 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, in this case Justice Department lawyer H. Thomas Byron challenges anti-mass surveillance legislation and attempts. 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 locates only after a judge has authorized the NSA to do so. He 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).

         Advocates of mass surveillance claim that government surveillance, wiretaps, and storage of metadata is necessary to intercept and prevent terror attacks. The justification supporters use for these government surveillance programs and legislation, even though they tread on First Amendment and free speech territory occasionally, are past terrorism attempts and plots. The September 11^th 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). James Clapper, the Director of National Intelligence, claims that,

Acquiring this information allows us to make connections related to terrorist activities over time. … By order of the FISC, the Government is prohibited from indiscriminately sifting through the telephony metadata acquired under the program. … The court only allows the data to be queried when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization. … Only a very small fraction of the records are ever reviewed because the vast majority of the data is not responsive to any terrorism-related query. (Saletan)

         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.

            Opponents of mass surveillance range from researchers, journalists, private companies, to ordinary American citizens. Journalists must provide confidentiality for their sources, intellectuals must be able to speak and report freely in order to exchange and build upon in a free marketplace of ideas. The historical justification that is used usually relates to government scandals and conspiracies like the Watergate break-in. Neil Richards, a Professor of Law and Civil Liberties at Washington University in St. Louis and an intellectual privacy consultant, is a strong opponent of the government surveillance programs and of over-reaching legislation like the USA PATRIOT Act, the FISA Acts, and court cases like Olmstead v. United States. Richards warns of the dangers of surveillance in his scholarly journal that was published in the Harvard Law Review. Neil Richards makes the case that mass surveillance discourages and threatens intellectual privacy according to what he calls the “intellectual privacy theory”. According to Richards, intellectual privacy theory relates to the chilling effect and suggests,

That new ideas often develop best away from the intense scrutiny of public exposure; that people should be able to make up their minds at times and places of their own choosing; and that a meaningful guarantee of privacy — protection from surveillance or interference— is necessary to promote this kind of intellectual freedom. (Richards)

         Another, more empirical, claim at the core of the intellectual privacy theory that Neil Richards holds is that society becomes more “mainstream and boring” because “when we are watched while engaging in intellectual activities, broadly defined — thinking, reading, websurfing, or private communication — we are deterred from engaging in thoughts or deeds that others might find deviant”(Richards). Richard’s other arguments against government surveillance and its creation of the chilling effect are that surveillance is rarely, if ever limited, and can transcend beyond the scope initially intended. Dr. Richards makes the case that since these government surveillance programs are carried out behind closed doors there is little assurance that the limitations and restrictions are even being followed. He also makes the case in his academic journal that once government expands it is extremely difficult to reign it back in. He questions what will happen to the advanced technology located all across the country and most recently in Utah, which will be home to the nation’s largest data collections center (Bamford). Neil Richards points out that surveillance creates an inferiority complex between ‘the watcher’ and ‘the watched’ which often leads to a phenomenon called function creep in which the use of technology or system is used for purposes other than which intentionally designed for. Richards also claims that surveillance, if not carried out correctly, can lead to discrimination, persuasion and blackmail. Opponents of mass surveillance reject the notion that the government takes the necessary measures to protect privacy and that they only access the files that they are authorized to do so. The justification for their rejection of this claim is that the NSA carries out these tasks in secret and do not have to answer to a superior entity that will limit or restrict their searches and investigations.

            It is quite clear that there needs to be a reform in order to balance the security of the nation with Americans’ right to speech and also to privacy. There are no clear or obvious solutions, which explains why the situation and problem exists presently and why it extends as far back as 1791 when the Bill of Rights was first introduced. Although technology was not as advanced in the 18^th century as it is today, issues of free speech, government intrusion and surveillance were real topics of debate. The protections that the revolutionaries tried to instill in the newly founded America are still relevant protections that modern Americans cherish and value. Protection from unreasonable search and seizure applied to Mapp v. Ohio among several other cases like Katz v. United States that demonstrated how privacy was an implied right guaranteed by the Constitution.

Table 2. There is a divide between Americans as they question whether or whether or not government surveillance should be allowed. Source: Pew Research Center, June 6-9, 2013, Web, Table 1A.

            Although most of the historical context of government surveillance is followed through government legislation there are some events that have transformed the issue over mass surveillance and free speech rights into a heated debate. The Olmstead v. United States was one of the first cases that dealt with government surveillance of technology. The Supreme Court decision that evidence collected by federal officials via a wiretap was permissible (Legal Information Institute). However, that decision was later overturned in the 1967 case of Katz v. United States. Just one year later, Congress passes the Omnibus Crime Control and Safe Streets Act, which restricts wiretapping but makes the exception for president to approve certain wiretaps in the name of national security. It is clear that there is this teeter-tottering unbalanced legislation between government surveillance and constitutional rights. When President Nixon was impeached, the court used the wiretaps to charge him. As technology advanced and expanded, the players involved in government surveillance also grew. For example, private companies and mega industries are also involved in the seizure, collection and storage of metadata. These companies include AT&T, Google and Yahoo which further complicates and explains the range of information that the government has access to. The issue of government surveillance is an ongoing problem as is demonstrated by the various cases that are presented to the United States Supreme Court. The case mentioned earlier, Wikimedia v. NSA, is a fairly recent case that has yet to be addressed in court yet because it is still in the preliminary stages of the court proceedings. The problem of free speech versus national defense in the form of government surveillance is not a new issue because even fourteen years before Wikimedia v. NSA there were similar cases. The fact that those cases were not resolved and Wikimedia v. NSA was filed indicates that the problem has not been addressed. Two cases that challenge the government’s mass surveillance programs are Jewel v. NSA and Amnesty Et Al v. Clapper. These two cases address whether or whether not the NSA is constitutionally allowed to spy on individuals of the government surveillance programs. There was concern that if the courts go through with the decisions then there would be an impermissible disclosure of confidential secret state information, which complicates the case. The courts claimed that there was no standing to sue. If Wikimedia v. NSA doesn’t change or reform the way the government monitors and stores data then there will continue to be court cases similar to those that will continue to challenge the Justice Department and the NSA. The Olmstead v. United States court case took place in 1928 yet the concepts of government surveillance, intrusions, free speech and privacy are still relevant in more recent court cases like Wikimedia v. NSA, Jewel v. NSA and Amnesty Et Al v. Clapper. Although the details and technology surrounding the actual mass surveillance are different the cases are still very similar which indicates that the United States needs to focus on fixing this on-going issue. Government surveillance fosters a chilling effect and restricts Constitutional freedoms like free speech and the right to privacy but the American citizenry has yet to come up with a system to reform the current system and fix the problem.

 

 

Works Cited

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Bamford, James. "The NSA Is Building the Country's Biggest Spy Center (Watch What You Say) | WIRED." Wired.com. Conde Nast Digital, 15 Mar. 2012. Web. 22 Apr. 2015.

Barnett, Randy. "Why The Nsa Data Seizures Are Unconstitutional." Harvard Journal Of Law & Public Policy 38.1 (2015): 3-20. Web. 13 Apr. 2015.

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Johnson, Gene. "Federal Judges Hear Arguments Over NSA Surveillance." The Huffington Post. TheHuffingtonPost.com, 08 Dec. 2014. Web. 21 Apr. 2015.

Liptak, Adam. "Justices Reject Ban on Videos of Animal Cruelty." The New York Times. The New York Times, 20 Apr. 2010. Web. 19 Apr. 2015.

"Majority Views NSA Phone Tracking as Acceptable Anti-terror Tactic." Pew Research Center for the People and the Press RSS. N.p., 10 June 2013. Web. 11 Apr. 2015. <http://www.people-press.org/2013/06/10/majority-views-nsa-phone-tracking-as-acceptable-anti-terror-tactic/>.

"Olmstead v. United States." Legal Information Institute. Cornell University, n.d. Web. 25 Apr. 2015.

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Watson, Steve. "Obama NSA Nominee Defends Mass Surveillance Of Americans." Infowars. Free Speech Systems, 11 Mar. 2014. Web. 25 Apr. 2015.

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