|Image by Tim Lee originally published in|
The News & Observer (Raleigh, NC) 2007.
The following article appeared on the cover of the August 2013 edition of Northeast Texan.
When former federal government contractor Edward Snowden told us the feds were listening to our phone conversations, the entire conspiracy theorist population leaned back in our chairs, crossed our arms, and said, “I told you so.” The liberals haven’t said much at all because they believe such intrusions are necessary to protect the security of the homeland. Providing for the common defense is one of the jobs given to the federal government by the Constitution, so could the liberals be right this time?
The National Security Agency (NSA) was created by a memo from President Truman under the National Security Act of 1947 to “conduct foreign communications intelligence.” The memo specifically defines that intelligence as “all procedures and methods used in the interception of communications.”
Today, this part of our defense against terrorism has been expanded to include access to your home phone, cell phone, pay phone, laptop, desk top, iPad, and even your toaster oven if you can get it to transmit a signal. Whether they are tapping your phone call, Skype call, email, text message, photo share, Tweet, or Facebook post, the NSA does have legal authority to listen to your private conversations as long as they are searching for foreign intelligence. Literally every instance of electronic communication is subject to evaluation by the NSA.
In spite of at least 40,000 employees and a Maryland headquarters building that uses more electricity than the entire city of Annapolis, the NSA doesn’t really have the ability to do that. They have computer programs that listen to the conversations for them, flag them for certain words or phrases, log and save that information, and eliminate the rest. In theory, they are not interested in your conversation unless you say something to indicate you might be a terrorist.
All this is legal because it has been authorized through the proper channels, but is it right? Doesn’t blanket eavesdropping qualify as an unreasonable search? Don’t you need a warrant to listen to me tell my daughter to pick up milk on the way home? What about our 4th Amendment right to privacy? Do you even have a right to privacy?
Not really. You have a right to be secure in your papers, which means you have the right to keep your personal information private, but whether that extends to a conversation transmitted over open airways is debatable. If an NSA agent overhears terrorists plotting an event at the next table in a restaurant, he does not violate the plotters’ 4th Amendment rights by launching a further investigation because the conversation was carried by open airway.
However, most of us believe that when we choose to communicate by private messages or phone calls instead of a party line, CB radio, walkie-talkie, or smoke signals, we have the expectation of privacy, regardless of how the signal is transmitted.
Few people would mind the government electronically sifting through our conversations if we trusted them to use the information appropriately, which all government agencies claim they do. However, information that can be stored can be manipulated, and that makes most staunch conservatives nervous.
All this data collection is legal, and most of NSA’s activities have been upheld by the Supreme Court when challenged. We obviously need some kind of organization that can catch terrorists in the planning stages instead of only after the fact, and that necessarily includes electronic communications surveillance.
But it doesn’t feel right, does it?
It doesn’t feel right because the founding fathers protected us against federal agents walking into our homes and rifling through our filing cabinets on a whim. Would they not also protect us today against having our electronic lives run through a sieve to see if Big Sis can catch us doing something wrong?
Because most national security business cannot be safely brought before regular courts, the NSA has their own Foreign Surveillance Court to keep the agency within the law. It doesn’t feel right that the single most powerful administrative office in the entire government has only foxes guarding the hen house when the right to privacy seems to be gray area.
It doesn’t feel right that the PRISM program that conducts this surveillance was created after public outcry forced the elimination of George W. Bush’s NSA program to tap US phones without a warrant. It feels wrong that the Patriot America Act of 2007 and the FISA Amendments Act of 2008 provide immunity for companies who cooperate with government intelligence collection.
It doesn’t feel right that companies we trusted with our social security numbers and our mothers’ maiden names are now under public scrutiny for allegedly turning our private information over to the government, simply for the asking. Apple and Facebook have denied giving open access to NSA while others, like Verizon, have remained silent.
The bottom line is this. Your 4th Amendment rights are not absolute. For NSA and similar agencies to do their Constitutionally provided jobs as well as they claim to be doing them, some violation of your personal liberties is unavoidable. If you have a better way to catch terrorists than sifting through every single phone call, the government would probably love to hear it.
Until then, watch yourself. Big Brother is listening.