NSA Surveillance Programs: Entirely Legal, Potentially Problematic

According to Boundless Informant, a top-secret National Security Agency (NSA) tool leaked by Edward Snowden that monitors the NSA’s collection of electronic information, the agency grabbed 97 billion pieces of electronic intelligence in March 2013. Three billion of those came from the United States. That’s three billion emails, photos, or pieces of web history in a single month.

While the NSA program known as PRISM appears to have focused on collecting foreign electronic intelligence, its own documentation shows that Americans, like dolphins in a tuna net, are frequently swept up in the government’s surveillance collection mechanisms. Although the distinction between foreign and domestic surveillance is frequently stressed by the defenders of extraordinary intelligence gathering practices in the post-9/11 era, PRISM, which archives electronic files from companies including Google, AOL, Microsoft, Apple, Skype, and Facebook, is actually entirely constitutional as understood by the Supreme Court.

The fourth amendment defends against unreasonable searches and seizures without the use of a warrant, but this sphere of protection does not actually extend to documents given over to a third party. In 1976 the Court ruled that a bank customer whose records were given over to the government had not had his rights violated:

The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. United States v. White, 401 U.S. 745, 751 -752 (1971). This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. UNITED STATES v. MILLER, 425 U.S. 435 (1976)

Under this understanding, the fourth amendment actually protects very little. The Court ruled in the past that it was illegal to plant a microphone in a telephone booth without a warrant, but collecting the physical record of the call would presumably be legal as long as it came from the third party present at the time (the company). More recently, the Court found that planting a GPS tracker on a car without a warrant constituted an illegal search. To take their own logic, tracking that same car by its EZ Pass records would be entirely different because by using that service its owner has voluntarily disclosed his whereabouts. Whether or not he expects those to become public, he would have no reasonable expectation of secrecy.

This all becomes even simpler from a legal standpoint when applied to the internet. Every action you perform turns over physical evidence to the owner of that service. It’s easy to think of an email as a message from you to another person. But that is not at all how it works. An email is simply a message placed in a virtual file cabinet that only the copied parties can (supposedly) read. For legal purposes this means that when you press “send” you are delivering that email to Google, Microsoft, AOL, or Yahoo. They then deliver that email to your intended recipient. But they own that data, and are perfectly within their legal rights to turn it over to a third party with or without a warrant.

It appears that the government has used liability as a source of leverage to ensure compliance with this system. A gmail customer does not expect Google to scan its servers for mentions of illegal or malicious acts and turn that over to the authorities. And although the complicated user agreements that everyone must sign but nobody actually reads before opening an account absolve the company of liability for any illegal acts completed with the help of that service (I assume – I’ve never read one either), a company could still potentially find itself on the hook for such an act if it was determined that they had the means to stop or detect it and failed to take action.

Enter the NSA. Taxpayers fund the NSA as a way of shifting the costs of the “free-to-use” model of the internet era. In return for compliance, the government absolves the participating companies of legal responsibility for the actions of their users. The NSA operates programs like PRISM to do what companies like Facebook or Google won’t do – gather information about potential terrorists. If the individual corporate entities had to take that responsibility, the costs would be massive and the data would be separated. One of the major takeaways of the program is that, to an extent, the government has solved the problem of centralization of information that may have allowed 9/11 to slip through the cracks. In the words of Thomas Paine, government is – like a dress – the symbol of our lost innocence. 

That is not a defense of these measures. It is one thing to collect the overseas telephone call records of customers, if not the contents of the calls themselves. It is entirely another to snag online files, pictures, videos, and chat history in a broad sweep. America is hardly a country in insurrection or under invasion; it’s hard to justify using the wartime powers granted by the PATRIOT Act – to quote onetime Presidential candidate Barack Obama – to cede to the government “powers it didn’t need to invade our privacy without cause or suspicion” to the tune of three billion files a month. I have no problem with the government obtaining a warrant or the cooperation of a company like Facebook to grab the web activity of a known or even suspected terrorist. Instead, they are casting the widest possible net, ensnaring all of us in the mesh.

These disclosures will probably hurt the credibility of these companies around the world. All of the listed ‘partners’ are multinational brands that – in part – trade off the freedom of American society, values, and products. What differentiates Google from the Chinese alternative in the eyes of an Indian or Pakistani consumer when the use of either service could come with unexpected attention? Why communicate using Skype when lesser-known VOIP alternatives are less likely to end up in the bowels of an American intelligence agency? By engaging in the heavy-handed surveillance that we loudly condemn, we again tarnish the American “brand.”

The really, truly amazing part of this whole story is that we will apparently tolerate a huge amount of government surveillance to prevent the next Watertown, but we still will not allow a national electronic database of registered gun owners to prevent the next Newtown. Whichever way you come down on either of those issues – more surveillance or less – our willingness to shred civil liberties follows no coherent pattern.

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