January 18, 2018
On June 5, 2013, the National Security Agency, an agency that had operated in near-secrecy for 60 years, was dragged into the light by the release of many of its covert surveillance operations. Edward Snowden, then a 29-year-old analyst for the NSA, stole an estimated 1.7 million documents, including communications records of American citizens, intelligence on foreign allies, and internet metadata, and released them to global media outlets. Rage ensued from all corners of the political spectrum in light of the breaches of privacy. Much of this rage, however, was not directed toward the agency that had perpetrated the injustices, but toward Edward Snowden, the man who revealed it.
The vast expansion of government surveillance over the past 15 years has produced new challenges to civil liberties. Public outcry against perceived traitors like Snowden is only counterproductive to keeping the government accountable for violations of privacy.
With the rise of internet surveillance and metadata collection, security now stands more at odds with privacy than ever before. Leaks about NSA activity have sparked momentary public outrage, but much of this anger has been misdirected towards whistleblowers, rather than the government itself. This complacency toward government surveillance networks reveals an American willingness to forgo privacy for the appearance of security, creating a crisis for civil liberties.
FISA Court Failure
Among the Snowden revelations was the uncovering of PRISM, a massive surveillance program that allows the government to collect information on private user exchanges from nine large companies, including Google, Facebook, and Microsoft. While PRISM requires that the NSA get a warrant for content of online communications, these warrants originate from the controversial Foreign Intelligence and Surveillance Court. In the FISC, all communications are done ex parte; the accused have no ability to challenge warrants. Moreover, the FISC has no ability to know whether its orders are being followed by the NSA, and recent reports reveal that the agency habitually exceeds the limits set on surveillance by the court. Indeed, according to the American Civil Liberties Union, released court documents indicate that, “the NSA exceeded the scope of authorized [metadata] acquisition continuously during the more than [redacted] years of acquisition under these orders,” and that “NSA’s record of compliance with these rules has been poor.”
Among the Snowden revelations was a FISC order to Verizon for the release of metadata on millions of American phone calls to the NSA and the FBI. The concept that a warrant could authorize such large-scale domestic surveillance is antithetical to the constitutional notion of privacy. The Fourth Amendment is grounded in the principle that warrants are pertinent to the specific individuals, locations, and objects being targeted for search and seizure. By casting an unusually wide net, the FISC order to Verizon fails to comply with these criteria and therefore runs contrary to one of our most basic legal conceptions of privacy.
Though many members of the American public find the FISC troubling in its secrecy, some leaders in the intelligence community take a starkly different stance.“[The FISC] is odd. You think it’s odd because it’s secret, I think it’s odd because it exists,” Michael Hayden, a four-star general and former director of the NSA, CIA, and of National Intelligence, told the HPR. “No one else has put espionage decisions, which are usually under the executive, under the court.” Hayden is a vocal opponent of Edward Snowden and has repeatedly defended metadata collection and FISC warrants. In continuing in their defense, Hayden discounted the judge who eventually ruled the warrant unconstitutional: “That’s just the one crazy judge who had more exclamation points in his opinion than he did precedent.”
Contradictions in Complacency
The release of the Snowden documents sparked outrage that privacy advocates hoped would spur government action—the results, however, fell short of expectations. The only legal repercussions for NSA activities were the declaration of the FISC order for phone records as unconstitutional, and the passage of a gutted NSA reform bill. The section on metadata collection, the bill’s largest focus, was left ambiguous to allow the NSA to continue to function with little oversight. Before the bureaucratically amended version of the bill passed, the largest technology companies retracted their support and civil liberties leaders in Congress, such as Justin Amash (R-Mich.) and Zoe Lofgren (D-Calif.) votedagainst it. Rep. James Sensenbrenner (R-Wisc.), the bill’s sponsor, said in an interview with NPR, “I wish this bill did more. To my colleagues who lament the changes, I agree with you.”
Nonetheless, the public was appeased. Media fervor died down, Snowden fled the country, and the NSA quietly returned to its surveillance practices. With such supposed fervor for individual liberties, why were Americans content to let surveillance slip from public view? Why were members of Congress so willing to succumb to bureaucratic pressures after decrying NSA overreach? Why aren’t we still talking about Edward Snowden?
Answers to these questions become even more elusive when we consider American attitudes towards surveillance and whistleblowers. A 2015 study conducted by the Pew Research Center revealed that 93 percent of American adults believe that having control over who gets their information is important, and 90 percent said that controlling what information is collected about them is important. Additionally, 88 percent say it is important that they are not watched or eavesdropped on without their permission. Even so, only 31 percent of the Pew sample said that they are at all confident that government agencies can keep their records private and secure, with only six percent saying that they are “very confident.”
New insights suggest that this contradiction between American attitudes and the reality of surveillance may arise from widespread feelings of resignation, the notion that an individual is powerless in stopping unwanted breaches of privacy. In studying online data collection for advertising purposes, researchers from the University of Pennsylvania Annenberg School for Communication revealed in 2015 that while 84 percent of respondents wanted control over what online marketers knew about them, 65 percent agreed that they had little control over their data. While the survey did not ask respondents about NSA surveillance practices, trends from the Pew survey, in which respondents largely wanted control over their privacy and yet did not trust the government to keep their records private, seem strikingly similar, with only 31 percent of respondents confident that their records can be kept private. The public has not been given an alternative to data collection, and it feels powerless in stopping it.
Despite apparent American support for privacy as a concept, citizens remain largely disapproving of whistleblowers who reveal violations of privacy. In 2015, US Newsreported that 64 percent of Americans surveyed held a negative view of Edward Snowden. Moreover, just 54 percent of Americans disapproved of NSA programs in 2014.
The HPR interviewed a spokesperson for the NSA to examine the root of this disapproval, beginning with agency’s operations and oversight. An NSA spokesperson told the HPR that the system of oversight provided by Congress, the Executive Branch, and the courts “ensures that the civil liberties and privacy of U.S. persons are protected.” This oversight, however, has faced intense scrutiny since the Snowden leaks. Even Hayden, a former director of the NSA, told the HPR that much of the public has become “no longer as willing to outsource the review, approval, and legitimizing of American espionage to the Congress and government as they once were.”
The NSA spokesperson said that the NSA has “made huge strides” in transparency within the last few years and shares “as much information as possible with the public.” Transparency was indeed improved slightly in 2017 when the NSA vowed to stop collecting communications that simply mentioned a foreign target. However, it is important to keep in mind this limited transparency was not volunteered by the NSA as a benevolent attempt to include the American public—it was demanded by American civilians. The NSA only became more transparent because the citizenry would no longer tolerate secrecy.
Privacy, Security, and Pushing Back
In the post-9/11 world, Americans seem to be more concerned with security than they are with privacy, willing to sacrifice civil liberties for the sake of feeling protected from terror threats. In another 2015 Pew survey, 49 percent of respondents stated that NSA programs had not gone far enough to protect them, as opposed to the 37 percent who were concerned that NSA programs had gone too far and encroached on civil liberties.
The threat of terrorism has further complicated the idea of transparency in intelligence. When the NSA releases information about surveillance practices to the public, it runs the risk of releasing it to terror suspects as well. Revealing information about surveillance operations would, according to Hayden, drive terrorist operations onto channels that are less likely to be monitored. Hayden justified total secrecy in surveillance operations: “Intelligence is the business of stealing things other people want to hide from you…I don’t think anybody questions the premise that espionage is best done in secrecy.”
Espionage may well be a practice that is best conducted in secrecy; however, unwarranted surveillance on the American public at large is not necessary. In a nation that was founded on the principle of liberty from government tyranny, a republican government should not be “stealing” information from its citizenry. The fact that both criminals and law abiding civilians use common technologies like cell phones and the internet certainly complicates the concepts of espionage and security, but it does not complicate it to a degree that justifies metadata collection on millions of civilian communications. American citizens must demand due diligence and transparency from intelligence agencies in order to preserve basic privacy rights.
To individuals like Dan Balz, chief correspondent for the Washington Post, the media is an optimal venue for Americans to demand accountability. In a recent interview with the HPR, Balz said that media outlets have always believed that “there is too much secrecy in government,” and that the media is “always trying to break down those barriers.” Balz went on to say that “the role of the media is to keep shining a bright light … the more transparency, the better.”
Though the media goal of demanding accountability and transparency may be noble, a story can only be a headline for so long. When the media moves on, individuals tend to do the same, and the secrecy of surveillance operations make them particularly easy to forget. Since surveillance agencies tend to keep the public in the dark, leaks have become the main source of information on mass surveillance operations. The NSA practices in the shadows, releasing only information that benefits the agency. With little but sporadic leaks of information to rely on, it has become easier for the American public keep the NSA in the darkness and pretend that it does not exist.
Surveillance agencies have played fast and loose with the Fourth Amendment’s protections from unwarranted searches and seizures of property, not only through dubious FISC rulings, but also by overstepping even the boundaries set by the court on intelligence agencies. Americans have been presented with incomplete information regarding the NSA. Public complacency is not because Americans have become apathetic, but because they have been given no alternative to mass surveillance. The current nature of surveillance turns the right to privacy into a privilege, but it is the responsibility of American citizens to actively seek a change to the new social norm of government oversight.