By Zach Gorwitz.
When National Security Agency contractor Edward Snowden leaked classified documents about a top-secret surveillance program on June 9th, 2013 he did more than expose the NSA’s spying techniques. Snowden opened a Pandora’s Box of questions concerning American privacy rights in an age of omniscient technology. It has always been in the back of the American psyche that the government uses extreme methods, legally or otherwise, to gather information. Watergate, Guantanamo Bay, the Cold War, etc. conjures images of a government that occasionally oversteps its boundaries in the pursuit of information and safety. Hell, there’s even a National Spy Museum in DC! Snowden’s unveiling of the NSA’s PRISM program awoke Americans (and their allies) to a more sobering reality– not even law-abiding, ordinary citizens are exempt from the surveillance net.
PRISM is not without legal antecedent. In 1978, Congress passed the Foreign Intelligence Surveillance Act, presumably as a method of fighting the Cold War. In that original intent, the law laid out the procedure for the legal collection of information about “foreign powers and agents of foreign powers.”
However, as terrorism and warfare evolved, that definition suddenly encompassed abstract groups such as the Taliban and al-Qaeda rather than just the likes of young, dashing KGB agent Vladimir Putin. As John McLaughlin of Foreign Policy asserts, the battlefield became boundless after 9/11, paving the way for questions about where the rules of war applied. And as Jonathan Masters of the Council on Foreign Relations explains that multiple revisions to the 1978 act, including the PATRIOT Act in 2001 and the Protect America Act of 2007, in addition to the Authorization for Use of Military Force and National Defense Authorization Acts, provide the United States Government with the weight of Congressional law behind its decisions to warrantlessly wiretap people both domestically and abroad. PRISM was not illegal. But, was it wrong?
The conversations previously held in hushed tones in back rooms of the Bush and Obama West Wings have been promoted to the front pages of the New York Times, Washington Post, and The Guardian. Is the U.S. Government overstepping its constitutional boundaries and invading the privacy of American citizens? To have this question officially answered, one would typically turn to the Supreme Court for a ruling most likely concerning the Fourth Amendment. However, the New York Times and Wall Street Journal in articles published July 6th and 8th, respectively, explain why this is not happening.
“The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.”
To date, the FISA Court has yet to deny a single request made by the government, made very few of its rulings public, and does not provide clear resasoning for its judicial rulings. The Justices are all appointed by Chief Justice John Roberts Jr. for seven-year terms with no confirmation process or public scrutiny. What is the point of a judicial court that does not act in public? What is the point in asking for permission to wiretap and spy if the request isn’t known outside of a non-descript room in DC? What is the point of publicly releasing occasional decisions if half the words are redacted? What is the point of operating under the guise of protecting constitutional rights when the people who hold them do not know where they begin and end? There isn’t one.
It would be naïve to think surveillance is not necessary. There are a lot of bad people out there and they communicate by e-mail, Facebook, phone calls, etc. to set up plots designed to inflict harm and loss of life. The United States is fighting war on global fronts, and the reality remains that there are people with sophisticated technology and malicious intent that need to be stopped. Surveillance, maybe in the form of wiretapping, can help. In an oxymoronic twist, the Surveillance FISA Court must be more transparent. Otherwise, the American experiment becomes an exercise in hypocrisy. No taxation without representation? Well, no rewriting the constitution in back rooms without representation, either.
It’ll be argued that privacy is not a constitutional right or that if one has nothing to hide, one has nothing to be afraid of. That argument is simplistic and underdeveloped. The Guardian has a few responses as to why privacy is important. Those are all true, but they miss the larger point. Privacy is important because it maintains the sanctity of the inner mind, because it preserves freedom of thought, because it protects the opinions that are contrary to those in the majority or power from persecution. Once you are not allowed to keep that thought to yourself, it is only a matter of time before you’re not allowed to think it. Czech philosopher Milan Kundera phrase it better in his essay, “Testaments Betrayed”: “Of course, we all act like Prochazka, in private we bad mouth our friends and use coarse language; that we act different in private than in public is everyone’s most conspicuous experience, it is the very ground of the life of the individual; curiously, this obvious fact remains unconscious, unacknowledged, forever obscured by lyrical dreams of the transparent glass house, it is rarely understood to be the value one must defend beyond all others. Thus only gradually did people realize (though their rage was all the greater) that the real scandal was not Prochazka’s daring talk but the rape of his life; they realized (as if by electric shock) that private and public are two essentially different worlds and that respect for that difference is the indispensable condition.” If the government has nothing to hide, what is it afraid of?
It is complicated. How can a surveillance court become more transparent while still accomplishing the goal of counter-terrorism? How can the government explain to its citizens that, yes, some their rights are being exchanged for collective security? A start is making the FISA Court more transparent. This means releasing decisions and adding oversight and judicial checks. The Obama Administration should explain in clear language where privacy rights stand in terms of the Constitution, for what purpose are PRISM and other programs being used, and despite all the secrecy, spying, and deception, they are still the good guys.
There is no doubt privacy rights are not absolute and surveillance (both domestic and abroad) is necessary. What is absolute, however, is the public’s right to knowledge about their rights and the American political system. Maybe then the lid on Snowden’s Box stays sealed a little longer.