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NSA's PRISM Surveillance Program Flouts Fourth Amendment

Katrina Kaiser |
June 8, 2013 | 8:40 a.m. PDT


Congress must reign in the NSA's excess (NSA/Wikimedia Commons)
Congress must reign in the NSA's excess (NSA/Wikimedia Commons)
On Wednesday, the Guardian exposed the existence of a court order  that allows the National Security Agency (NSA) to automatically collect the telephone and Internet records of millions of Verizon customers in the U.S. This report has confirmed the worst fears of those who hold communications privacy and the Fourth Amendment dear: the federal government is probably spying on you without your knowledge or consent.

With the revelation of this court order, which gives the NSA information on all telephone calls in its systems, the NSA has no plausible deniability left when dealing with claims that it spies within the U.S. Ordinary citizens now know that not only Verizon customers, but Microsoft, Apple, Skype, Google, Yahoo!, AOL and Facebook users are all included in the six-year PRISM metadata collection program.

What is metadata? This information identifying phone and Internet transactions includes, according to the Guardian, “the numbers of both parties on a call… location data, call duration, unique identifiers, and the time and duration of all calls.” The contents of a conversation are not automatically recorded, allowing the court to avoid legally classifying this information as “communications,” which would require individual warrants to access.

This legal workaround is outrageous because it violates the spirit of the Fourth Amendment, which should protect citizens from unreasonable search. Because the data collection under PRISM is untargeted, it allows the NSA to build a broad network of who talks to whom and people’s movements. Even without direct wiretapping and content monitoring, PRISM’s pre-emptive surveillance of millions of innocent Americans has all the makings of a dragnet program.

Senators Dianne Feinstein (D-CA) and Saxby Chambliss (R-GA), heads of the Senate Intelligence Committee, defended the program, saying the NSA needs to match phone metadata with the phone numbers of “known terrorists” in order to target its investigations. They also made clear that every company included in this program has its court order renewed every three months, which is consistent with the amount of time the Verizon court order is in effect. However, the senators, who are supposed to represent both the security and the privacy interests of the citizens, could not answer important privacy questions such as how long the government stores these numbers and information.

The PRISM program, like its parent, the Patriot Act, is another symptom of the government’s deepening fear and distrust of its own citizens. The NSA unsurprisingly chose to focus on expanding domestic surveillance at a time when fears of terrorism were high. The court order to include Verizon in PRISM was signed 10 days after the Boston Marathon bombing, and a few days after Dzhokhar Tsarnaev was captured. Indeed, after the bombing, Neon Tommy contributor Danny Galvin wrote about the specter of “a police state, with the military and law enforcement constantly stalking our whereabouts with cameras, background checks and snipers on rooftops.” We know that security measures such as those are unlikely, but this most recent revelation shows that what citizens do not know about security may be more frightening. Institutionalized and systemic fear mongering has unfortunately blurred the lines between government critic, dissenter, rebel and domestic terrorist to the point that everyone is being watched.

It is frustrating that in a purported democracy, a government elected by the people would leave its citizens totally in the dark about security measures. We have a right to this information. As Bruce Schneier from The Atlantic puts it, “Democracy requires an informed citizenry in order to function properly, and transparency and accountability are essential parts of that. That means knowing what our government is doing to us, in our name. That means knowing that the government is operating within the constraints of the law.” But right now, the only information people have comes from Freedom of Information Act requests, which don’t reveal over-classified information such as PRISM, or information from whistleblowers, who require legal protection.

President Obama’s insistence that America “cannot have one hundred percent security and then one hundred percent privacy” suggests that intrusive surveillance by the government is somewhat inevitable until the specter of terror is replaced. Congress should take steps, such as Senator Rand Paul’s (R-KY) Fourth Amendment Restoration Act or changes to the privacy standard as articulated by the American Civil Liberties Union, to limit the twelve-year-old Patriot Act and the organizations it regulates. It is ultimately up to Obama and the executive branch, however, to grant the American people the transparency they demand and deserve. Unfortunately for now, this change of tack seems unlikely.


Reach Contributor Katrina Kaiser here; follow her here.



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