Table of Contents

Introduction

Imagine when the “Big Brother” silently creeps into your life: as you walk down the street, security cameras monitor everything you do; smartphones listen and record everything you say; Internet providers store everything you post online. One day, you suddenly realize that an authority is watching you, but you want privacy. What can you do? Unfortunately, if you do not want to live in a desolate area and completely break away from the society, you have very limited options. You may have to accept the fact that the government collects information about almost every aspect of your life without your consent. Essentially, your digital life “is in the hands of a system whose reach is unlimited but whose safeguards are not” (Poitras).

This situation seems fictional to many, especially in the United States with civil liberties guaranteed by the Bill of Rights, but this degree of surveillance is a reality in many different countries, including the U.S.

In June of 2013, Edward Snowden, a former defense contractor and whistleblower leaked thousands of top-secret documents from the National Security Agency (NSA), detailing the capabilities NSA’s secret mass surveillance programs on U.S. and foreign citizens and their widespread coverage and intrusive nature. Using these programs, the government can directly access individuals' electronic communications in real time without a search warrant.

The U.S. government denies to comment on the leaked materials and any accusations of spying, and emphasizes that the programs only “targets” foreigners, but privacy advocates, such as the American Civil Liberties Union (ACLU), often argue that the U.S. government uses its surveillance programs as a backdoor into Americans’ private communications, violating the Fourth Amendment, which prohibits warrantless searches and seizures, on a massive scale (Toomey).

Background

The terrorist attack on September 11, 2001 started a major wave of national security enhancements, including improvements on border security and aviation security, and all of which are greatly appreciated by the public. However, the U.S. government also began an unprecedented degree of mass surveillance for the same reason. Less than two months after the incident, the infamous USA PATRIOT Act was signed into law with nearly unanimous approval. The Act intends to “preserve life and liberty” by protecting Americans from the dangers of global terrorism through the means of surveillance and “information sharing” among government agencies (“Highlights”). Even though the law's intentions are generally uncontroversial, or even appreciated, the Act improves national security by enhancing the government's ability to surveil, which appears to violate personal privacy and civil liberty to some extent. Specifically, under Section 215 of the PATRIOT Act, also known as the “library records” provision, the government has the power to access a wide range of personal material for investigation without disclosing attempts to access.

Furthermore, the legal foundation for mass surveillance strengthened in 2008: Congress passed the Foreign Intelligence Surveillance Amendments Act (FISA Amendment Act), which expanded the coverage of U.S. foreign intelligence. The most controversial part of the FISA Amendment Act – Section 702 – allows “the collection of foreign intelligence from non-Americans located outside the United States” (“Decoding”). Even though this does not seem related to domestic surveillance, domestic communications are often collected “incidentally”, due to technical difficulties in identifying the sources and/or targets of digital communication.

The PATRIOT Act and FISA Amendment Act set the legal groundwork for mass surveillance, and the NSA has taken advantage of them and implemented a number of top-secret programs to tap into people’s digital lives. Thanks to Snowden’s leak in 2013, the public has gained knowledge about such programs for the first time. One of such programs, codenamed “Upstream”, allows the NSA to copy all Internet traffic as they travel through the backbones of the Internet. Another program, codenamed “PRISM”, gives the NSA direct access to the servers of approximately a dozen of participating companies and obtain information of individuals in real time without court orders (Greenwald, “NSA”).

After the Snowden leak, the government always responds by stating the “benefits” of surveillance: improving national security and preventing terrorism. Gen. Keith Alexander, the director of the NSA, testified in front of Congress that “the information gathered from these programs provided the U.S. government with critical leads to help prevent over 50 potential terrorist events in more than 20 countries around the world” (Bergen). Such claims may seem so impressive to many that the public seems to understand why the U.S. government conducts mass surveillance and have limited concern with the government’s capabilities. Some experts, including James Taylor from the College of New Jersey, argues that “it should also be morally permissible for [judges] to secure this information through the use of surveillance devices” under certain circumstances (Taylor). However, experts like him and the public often fail to understand the actual effectiveness of these programs and ignores how these programs affect personal privacy and civil liberty.

The U.S. government mass surveillance programs are proven ineffective by independent researchers; the existence of these programs also jeopardizes personal privacy and civil liberty, and tramples on the established systems of checks and balance within the government.

Surveillance proven ineffective

Statistical evidence disproves the the government’s claim that surveillance programs under the PATRIOT Act and FISA Act monitors foreign threats and improves national security.

An analysis of 225 individuals involved with terrorism since 9/11 shows that traditional methods of investigation have contributed the most in many cases, while NSA's bulk surveillance has provided little information. Specifically, NSA intelligence has initiated only 8% of the aforementioned investigations, and community, informant and family tips has made contributions to over 33% of investigations (Bergen).

Furthermore, many persons of interest often utilize technology to their advantage and avoid surveillance with little effort. For example, “terrorists often use the Internet to spread their propaganda, attract recruits, and remotely plot terrorist attacks from relative safety. ... Even if intelligence agencies can single out their targets, terrorists can use encryption to make their messages unreadable” (Forscey). Making matters worse, strong encryption technologies without government backdoors are readily available and usually free. For example, one can also use Veracrypt to encrypt their digital storage medias, which makes digital forensics nearly impossible. In addition, many popular digital communication tools have privacy-respecting and strongly-encrypted counterparts. To name a few, Tutanota – a free encrypted email service – replaces Gmail for secure email communications; Signal – a free, encrypted instant messenger – takes the place of text messages for messaging privately. In fact, many terrorist organizations, such as ISIS, utilizes similar tools to avoid detection, and their continued existence has proven these tools effective.

Domestic extension

Guided by vaguely-worded legislation and limited justification, the government has extended their power far beyond legal boundaries.

Although the government insists that the NSA only monitors foreign targets, the government has extended surveillance domestically. An attorney at the ACLU states that “[the government] systematically combs through its PRISM databases for the emails and messages of Americans. Indeed, FBI agents around the country routinely search for the communications of specific Americans using their names or email addresses — including at the earliest stages of domestic criminal investigations” (Toomey).

Bulk collection of telephony metadata is one example of domestic surveillance programs, according to one of the documents leaked by Snowden. Telephony metadata does not include contents of phone calls, but the collected data contains phone numbers of the participants, timestamps, and duration. Even though the exclusion of call contents may sound like a relief to most, and the government has used the same excuse to justify, metadata can reveal an enormous amount of information about individuals and their activities. A research on the privacy properties of telephone metadata suggests that “telephone metadata is densely interconnected, easily reidentifiable, and trivially gives rise to location, relationship, and sensitive inferences” (Mayer). With the government’s capability to collect telephony metadata, one may reasonably expect that the government have knowledge of nearly everyone’s social interactions and potentially use such information against individuals.

Implications

Privacy

The existence of mass surveillance has significant privacy implications. The government owns copies of our digital communications, regardless of their intentions, and this can potentially become the end of personal privacy.

Before digital communications become commonplace, one can expect a significant degree of personal privacy. For example, no one can open postal mails that is not addressed to them. However, this degree of privacy has essentially disappeared in the twenty-first century, especially after the implementation of mass surveillance after 9/11.

Even though many journalists expected reports on the Snowden leak to spur debates about privacy, a decent number of the public does not feel concerned about government “spying” because they have “nothing to hide.” This argument refers to the notion that nothing needs to be hidden if one has not done anything wrong, hence government surveillance has little harm. According to a survey conducted by Pew Research Center in 2015, 40% of Americans consider surveilling U.S. citizens acceptable; 54% of Americans consider surveilling foreign citizens acceptable. and “roughly four-in-ten said they were somewhat or very concerned about government monitoring of their activity” (Geiger). One can reasonably infer that people who consider surveillance acceptable and do not feel concerned about surveillance also hold the “nothing to hide” argument.

However, this common argument is flawed in many ways. Locks on doors, passwords on phones, and seals on envelopes – all serve to protect people's privacy. If a person really has "nothing to hide", they probably would voluntarily share private information, including communication history, financial details, medical records, and so on, with others. Apparently, such individuals do not exist in real life. Glenn Greenwald, the first journalist to report about the Snowden files, shares a small experiment that proves this in a TED talk about privacy:

I get out a pen, I write down my email address. I say, “Here's my email address. … Email me the passwords to all of your email accounts, ..., because I want to be able to just troll through what it is you're doing online, read what I want to read and publish whatever I find interesting. After all, if you're not a bad person, if you're doing nothing wrong, you should have nothing to hide.” Not a single person has taken me up on that offer (Greenward, “Why”).

His experience suggests that people holding the “nothing to hide” argument almost always take rudimentary steps to protect their privacy. In other words, most members of the society treasure personal privacy, and their behavior in real life contradicts the “nothing to hide” argument. Furthermore, Nancy Chang, a litigation attorney at the Center for Constitutional Rights, argues that surveillance legislations "will reduce our already lowered expectations of privacy under the Fourth Amendment by granting the government enhanced surveillance powers" (Chang). With access to a complete digital archive of everyone’s digital communications, many reports suggests that some government agencies, especially the NSA, can browse individuals’ personal information at their leisure. As a result, people should no longer expect their digital lives to remain private at all.

Civil Liberty

Constant surveillance can also violate people’s civil liberty.

Since the government has started spying on citizens with little public knowledge and consent, they have essentially ignored the democratic process and violated people’s right to knowledge. Specifically, surveillance legislations, such as the FISA Amendment Act, often include “secrecy clauses,” which prohibits the disclosure of data retrieval requests from the government. Paul Jaeger, an Information Studies professor at the University of Maryland, argues that “because of this secrecy clause, unless government agencies choose to disclose such information, it is likely the case that the public will never know the extent to which law enforcement agencies request records containing personal information from various organizations” (Jaeger). Indeed, many secret NSA programs, such as PRISM and Upstream, were practically exempt from the Freedom of Information Act (FOIA) and checks and balance within the government, due to their “top secret” classification.

With great power comes great responsibility, but the government has clearly abused their power to surveil and failed to responsibly protect citizens’ basic rights to privacy and civil liberties. Consequently, a society with constant surveillance can severely cripple the spirit of liberty and freedom, because “creativity, exploration, and dissent exclusively resides in a realm of privacy” (Greenwald, “Why”).

Expert review

Many experts also understand the dangers of mass surveillance and argue against the existence of such activities.

Neil Richards, a law professor at Washington University, recognizes the danger of government spying and concludes in a paper that "unconstrained surveillance, especially of our intellectual activities, threatens a cognitive revolution that cuts at the core of the freedom of the mind that our political institutions presuppose” (Richards). With his experience in law, he clearly understands the current state of surveillance and the dangers of such act: unregulated surveillance has resulted in the loss of personal privacy and political freedom.

The deeply flawed implementation of these “security-enhancing” programs should also trigger a reconsideration of current surveillance programs, as they protect neither security nor privacy. Adam Moore, a professor of philosophy at the University of Washington, argues that “the best way to protect both [privacy and security] is to insist on a probable cause requirement, judicial discretion, and public oversight” (Moore). Since his primary research focus include policy issues surrounding privacy and freedom of speech, he certainly understands the consequences and possible resolutions of government surveillance. In theory, when the government puts his ideas into practice and reevaluates the legality and ethicality of surveillance, one can expect respect of personal privacy and civil liberty from the government as a result, and the existence of NSA's mass surveillance programs shows the consequences of limited oversight and proves the neglect of law within the government.

What Richard and Moore have expressed represent the opinions of many other researchers and experts, and their expertise and familiarity with this subject creates lots of credibility. Their arguments illustrate the truth of government mass surveillance programs: these programs allows the government to collect information about individuals on an unprecedented scale and violates individuals’ privacy and liberty for marginally better security.

Final words

The current state of surveillance should cause serious concerns. With the government spying on virtually everyone, one should not expect their online activities to remain private for the foreseeable future. The renewal of Section 702 of FISA Amendment Act in 2018 suggests that government mass surveillance continues, despite the significant privacy and civil liberty implications and oppositions from civil rights groups. Since the Act will not expire until the end of 2023, one can reasonably expect mass surveillance to continue until at least 2023.

We, as a society, must understand the truth of mass surveillance: a violation of our privacy and civil liberty. Otherwise, surveillance can potentially become more and more intrusive as technology continues to develop, and Orwellian dystopia may eventually become a reality.

Further reading

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TL;DR

The U.S. government mass surveillance programs are proven ineffective by independent researchers; the existence of these programs also jeopardizes personal privacy and civil liberty, and tramples on the established systems of checks and balance within the government.

We must understand the truth of mass surveillance: a violation of our privacy and civil liberty for marginally better security. In the future, surveillance can potentially become more and more intrusive as technology continues to develop, and Orwellian dystopia may eventually become a reality.

References

Bergen, Peter, et al. Do NSA's bulk surveillance programs stop terrorists?. Washington, DC: New America Foundation, 2014.

Chang, Nancy. "The USA Patriot Act: What's so patriotic about trampling on the Bill of Rights." Guild Prac. 58 (2001): 142.

"Decoding 702: What is Section 702?" Electronic Frontier Foundation, www.eff.org/702-spying. Accessed 19 Apr. 2019.

Forscey, David, and Mieke Eoyang. Surveillance and Encryption. Third Way, 2016, www.jstor.org/stable/resrep02537.

Geiger, Abigail. "How Americans Have Viewed Government Surveillance and Privacy since Snowden Leaks." Pew Research Center, 4 June 2018, www.pewresearch.org/fact-tank/2018/06/04/how-americans-have-viewed-government-surveillance-and-privacy-since-snowden-leaks/. Accessed 3 Apr. 2019.

Greenwald, Glenn. "Why Privacy Matters." TED, Oct. 2014, www.ted.com/talks/glenn_greenwald_why_privacy_matters. Accessed 3 Apr. 2019.

Greenwald, Glenn, and Ewen MacAskill. "NSA Prism Program Taps in to User Data of Apple, Google and Others." The Guardian, Guardian News & Media, 7 June 2013, www.theguardian.com/world/2013/jun/06/us-tech-giants-nsa-data. Accessed 4 Apr. 2019.

"Highlights of the USA PATRIOT Act." Department of Justice, www.justice.gov/archive/ll/highlights.htm. Accessed 19 Apr. 2019.

Jaeger, Paul T., John Carlo Bertot, and Charles R. McClure. "The impact of the USA Patriot Act on collection and analysis of personal information under the Foreign Intelligence Surveillance Act." Government Information Quarterly 20.3 (2003): 295-314.

Mayer, Jonathan, Patrick Mutchler, and John C. Mitchell. "Evaluating the privacy properties of telephone metadata." Proceedings of the National Academy of Sciences 113.20 (2016): 5536-5541.

Moore, Adam D. "Privacy, Security, and Government Surveillance: WikiLeaks and the New Accountability." Public Affairs Quarterly, vol. 25, no. 2, 2011, pp. 141–156. JSTOR, www.jstor.org/stable/23057094.

Poitras, Laura, director. Citizenfour. Praxis Films, 2014.

Richards, Neil M. "The dangers of surveillance." Harv. L. Rev. 126 (2012): 1934.

Taylor, James Stacey. "In Praise of Big Brother: Why We Should Learn to Stop Worrying and Love Government Surveillance." Public Affairs Quarterly, vol. 19, no. 3, 2005, pp. 227–246. JSTOR, www.jstor.org/stable/40441413.

Toomey, Patrick. "The NSA Continues to Violate Americans' Internet Privacy Rights." American Civil Liberties Union, 22 Aug. 2018, www.aclu.org/blog/national-security/privacy-and-surveillance/nsa-continues-violate-americans-internet-privacy. Accessed 8 Apr. 2019.

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