Identifying Legal Issues Concerning Electronic Surveillance and the US Constitution

Invasion of the privacy is strongly believed to be the total violation of the Constitution in terms of people’s civil liberties and individual rights. The society is completely dependent on electronic communication and people send billions of messages and emails every day but now there is a strong possibility that their words are being tracked, analyzed and archived. The purpose of the paper is to identify the rights citizens have for privacy, precedents and issues of surveillance and extent to which these rights were invaded by the government.

What has long been suspected got exposed when ex contactor of National Security Agency Edward Snowden blew the whistle and leaked documents proving the extensive data collection ordered by the US government. Google revealed that the number of government requests for information on American citizens rapidly increased with an average rate of 150% for the last five years, including enquiries for copies of emails, and a large number of those requests were made without a warrant (Salgado). Electronic surveillance grows because employees of the National Security Agency are supported by the government and its pervasive goal of fighting terrorism and better protecting the public. Obama’s administration and NSA tried to protect themselves and mitigate public outrage by providing minor changes in the way surveillance system operates. Snowden’s revelations were scrutinized by the government and its lawyers even tried to distort some facts shielding courts decisions, though have never allowed the government to run a spying program to this extent. Snowden’s revelations and public attention might actually lead to a reform.

To understand how it all has happened, it is necessary to turn to the history. America’s founders always tried to get rid of oppressive British surveillance and unreasonable search and seizure. Understanding that privacy was necessary for every basic right in the Constitution, the fourth Amendment was introduced. The fourth Amendment was designed to impede the government from tracking or searching personal information, unless there is a substantial reason to consider that a crime has taken place (“US Constitution, Amendment IV”). Using the NSA surveillance system, the US government is violating the highest law of the country that is the Constitution. With the adoption of the Patriot Act in 2001 the government increased its surveillance requests to a much greater extent. Rather than obtaining a warrant for an individual person suspected of crime, the government could now make a long list of persons, even those under no suspicion of criminal activity. FISA agents are not required to disclose what court orders are being approved and supporting evidence is not needed. It is all protected by secrecy without a system for verifications and balances (“USA Patriot Act”). If the NSA is collecting information on somebody based on what a person reads, or the websites he or she visits, the person is likely to never know or get to stop it no matter who the person is. The agency claims to work within the limits of law, while completely ignoring basic principles and procedures. People are being constantly observed without any warrants or even serious reasons. Internet users get under surveillance entering specific keywords and there are thousands of words that the government tracks (Cohen). Almost any email that is sent might lead to a person’s account being monitored. This kind of tracking can make a person a second guess what he or she says thus limiting freedom of speech and basic privacy. If people are no longer in control of what they say they are not in control of their lives either. Mass spying violates people’s rights and deprives of their basic freedoms. Free press is no longer free and is constantly under surveillance; it gets under the control of the government and so can be easily misused as a tool for propaganda. In such a way, the government violates another right of people that is right to be informed and get unbiased pure data which is the basis of a democratic society. Even as protests mounted, the United States government still supports a vast cyber spying program, and President Obama has called only for some minor reforms still not making any serious changes to the system (Bennett). What was found out through the Snowden’s disclosures is that the United States government is collecting all of metadata which reveals social and professional networks of people, their connections and location at a particular time. Social networks, mail, banking services and popular search engines are all under the control of the government. The problem is that most of the data that is accessed today on the Internet is not actually on one’s own computer anymore, but out there in the open third-parties management and a lot of information can be easily intercepted. Government spying could be the first step toward a police state. This situation leads to a tendency that all commerce is unsafe, all communications are unsafe and people are completely deprived of their privacy. Multiple laws are misinterpreted for the purposes of NSA thus allowing surveillance and data collection which was not initially allowed by the Constitution.

But nevertheless it has its positive sides as well, and government incentives can be understood to some extent. If to consider surveillance, it is not just about trying to catch terrorists. What else the federal government is doing to benefit from more electronic surveillance is the job done by internal revenue service. The government has a job of trying to make sure that everybody pays taxes for all the money they earn. For instance, those citizens who work from home have to be overlooked as the government has to trace every kind of transaction that generates income. Citizens need to pay taxes to ensure steady development of social programs and so the government has to monitor the cash flow. These are not necessarily justifications for electronic surveillance, but these are the reasons the government has for doing it. Another reason is to trace people who might be breaking election law by providing false advertising and arranging donations and contributions for political parties which is illegal (Federal Election Commission).

People carelessly leave electronic traces through their computers, communication devices, smart phones, and laptops thus allowing accumulation of information about them, giving law enforcement officials and private companies access to unprecedented amount of data. In the past, privacy constituted physical space and objects, like one’s home or the documents belonging to somebody. But the tools to be used to conduct daily duties changed and the definition of what is considered private also changed as well as the interpretation of the laws. At the age of the widespread telephone use, when this device became a household item in the early 20th century, the Supreme Court faced a decision to be made of whether a phone call is part of what is considered a person’s privacy. The Supreme Court went back and forth in this for forty years before finally settling on a firm decision. In 1928, the Supreme Court said no. In 1934, they said that law enforcement officials are allowed to tap into the phone line only if they want to sum up the ideas. But in 1967, they said that wiretapping is an invasion into person’s privacy (“Timeline of NSA Domestic Spying”). They reinterpreted the 4th Amendment saying that the law now protected not just places, like bedroom, garage, or kitchen, but people and what they on reasonable terms consider part of their privacy. A year later, Congress defined the rules for getting permission to tap into the phone lines. They created a distinction between two types of surveillance: the first type allowed surveillance of the content or meaning of the communication, so a phone call and conversation itself were to be monitored, and for this kind of surveillance it was necessary to get a court issued warrant; the second only allowed monitoring of transactional or addressing information, so within a phone call there would be phone numbers dialed and for this kind of surveillance it was only necessary to get a simple trap and trace warrant, a document that is much easier to get than a court warrant. In the era of computers in 1986 the Electronic Communication Privacy Act expanded wiretap laws to include new electronic communications. It laid off the kind of information that was off-limits for land forces. That meant that any information in the form of text, sound, or data that was transmitted through and stored on electronic communication systems was now protected. Now that we entered the era of smart phones, laptops, tablets, and surveillance cameras, we faced the technological conundrum once more. They edit so many data collected on devices in daily routine that people no longer know what is and what is not part of their private space. The 9/11 tragedy showed that there are already law enforcement officials that have access to all sorts of data about a person in the name of protecting Homeland Security. Signing of the Patriot Act in 2001 set new rules for what was and was not off limits to the law enforcers. Some restrictions were amended: law enforcement officials no longer required to give notice about searching someone’s property at least not until long after the search was executed. They can tap into the phone calls between an American citizen and a foreign national without a warrant search if they are to investigate the foreigner. Law enforcers have also been pleasing GPS trackers on cars, though the Supreme Court has recently stated that this was a violation of private rights. There is not a single law which explicitly protects the rights of the citizens for safe electronic communication and decisions are still made on the basis of the increasingly outdated 1986 Electronic Communications Privacy Act. If to take online data, for example, it becomes evident that there are no regulations that protect consumers. Google archives one’s browsing history, while Facebook makes records of every “liking” friend and collects data about geo location. The same applies to visual information; while phone lines and other means of oral communication are protected by the previous acts, video footage is not. The list of undefined territories is long, including facial recognition technology, GPS tracking, and search terms; but there is nothing that should and should not be regarded private. Access to information is important in fighting against criminal activity and terrorism but some argue that the standards of existing laws are too vague and confusing, creating a system that allows deliberate invasion of privacy. The government is faced with a double problem of embracing the proliferation of technology and the security needs of the US, while at the same time protecting a reasonable right for privacy in the digital age.

There are privacy provisions in the Constitution and the Bill of Rights, and the first five Amendments all have privacy provisions, but citizens of the US do not have a generic right to privacy. The Supreme Court in a number of cases stated that there was a right to privacy, however, it is a court’s decision that is not based on a document, so if the court changes, the rights also change and not necessarily in a good way.

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The Constitution does protect privacy to certain extent, but not very much. What really protects privacy was the inability of government to really engage into surveillance due to technological limitations. Those limitations are now gone and the government actually can engage in surveillance that the Framers would never have imagined. It is happening at the time when people are no longer focused on the laws of privacy because they are not used to having much privacy in the society. The case of Jones vs. the United States before the Supreme Court involved GPS tracking and putting a GPS tracker in the vehicle of a suspect. The implications are quite serious as this situation is perfectly Orwellian as Justice Kennedy admitted during the oral argument. Obama administration is absolutely confident that the government is able to put GPS devices on any citizen without a warrant, so that it is possible to follow them all the time (Turley). Their main argument for that is that citizens have no expectation in terms of their travelling in public even with a device that shows every turn that is made. In 1928 in the case called Olmstead, the Supreme Court created a truly ridiculous doctrine called the trespass doctrine which stated that the government only needed a warrant if they physically trespassed on somebody’s property. The Supreme Court actually enforced technological changes and so the market of surveillance immediately went to non-transpassory surveillance devices. The Supreme Court actually pushed the industry into developing ways to engage in surveillance that did not involve trespassing and the government engaged in surveillance on a large scale. Then in 1967 Katz case brought about the famous Supreme Court decision stating that the 4th Amendment protected people and not places. Before that trespass doctrine treated one’s home and the physical outline of one’s home as what was to be protected, but that was ridiculous because what needed to be protected was what the home represented and what was within it that is privacy. The Katz decision was a significant improvement in the area of personal privacy issues, but it was also contrary to itself, because it stated that now the government had to get a warrant to engage in surveillance in case a suspect had a reasonable expectation of privacy. It led to present day situation with decreased expectations of privacy and correspondingly increased government surveillance. People have now very little expectation of privacy outside their immediate home or apartment and that means the government has much more freedom. The Court could fix its past problems, but the main problem is that this is not the court to do it. And the problem is also with prevailing conservatism of the US courts. Justice tends to support the government and police and they are more reluctant to vote for individual rights and privacy that are at variance with the government’s official opinion. According to the law professor Jonathan Turley, Barak Obama is killing civil liberties movement in the United States as he divided civil liberties community and some civil libertarians just can not break free from Obama and vote against him while other civil libertarians tend to be very angry with Obama and can not ethically support him. Thus, the society is caught in a type of Faustian bargain where people are not guaranteed to get full privacy but society still agrees with the existing order of things and follows Obama’s choice of policy not to get into more serious troubles. The most chilling outcome is that the Internet, which people love so much and which was initially designed to help people, on the contrary makes their lives even harder and has become a perfect tool for keeping the whole country under control.

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