In 2005, the New York Times published a report in which it revealed the existence of an extensive government surveillance program that not only targeted citizens of foreign countries, but also allowed the government to collect data about domestic communications. The revelations resulting from this report as well as documents leaked since have sparked massive public outcry and brought to the forefront the debate regarding whether or not the government has a right to conduct such extensive surveillance on its own citizens. However, there is far from a consensus on what the best course of action is. Opinions on this subject range from those who believe the program is the only thing holding us back from another 9/11 to those who believe the NSA’s actions are the beginning of the end for our democracy. Overall, though, for the sake of our country and freedom as we know it, the NSA’s spying program should be reduced from the behemoth that it is now.
Based on the aforementioned New York Times as well as numerous documents leaked by Edward Snowden, a former NSA contractor, one may piece together many of the details regarding the NSA’s surveillance program. Put into place after 9/11 in an effort to prevent further terrorist attacks, the program, or Stellar Wind as it was called, was initially created to target foreign communications. Using a technique called domestic wiretapping, the NSA eavesdropped on and collected the metadata from calls between foreign nationals and U.S citizens as well as those between U.S citizens and people in foreign countries. Since 2002 when the program began, the NSA has added the tapping of emails and other internet communications to the methods it uses to conduct espionage. It does this by installing sophisticated devices called “fiber-optic splitters” at all of the largest telecommunication facilities across the country. Due to this equipment, approximately 75% of all data used by people in the U.S is copied and sent to the NSA. For example, if one were to send an email to somebody else, then the email would travel from their house to the telecommunication facility where a copy of the text as well as the metadata would be made and then sent to the NSA while the original copy of the email is sent to the intended target. Once a copy of the email is in the hands of the NSA, the NSA gets rid of completely domestic communications by using the IP addresses as a way to pinpoint the location of both the sender and the recipient. Finally, the NSA analyzes the remaining data using “selectors” that help them to determine whether the information is of any use before storing the information that gets past these filters in databases to be used by the FBI for investigations.
Despite its seemingly benevolent intent, the NSA surveillance program has been fraught with controversy regarding its legality. One of the most significant issues regarding the program was that the Bush administration had authorized the NSA to conduct warrantless surveillance on U.S citizens with total disregard towards the Foreign Intelligence Surveillance Act, which had been passed in 1973 to prevent this exact type of thing from happening. According to the law, in order for an agency to obtain the right to conduct electronic surveillance, it must first have its request reviewed by the Justice Department, approved by the Foreign Intelligence Surveillance Court, certified by the attorney general, then finally be reported to the Intelligence Committees in both the Senate and the House. Based off of the information garnered by the New York Times and compiled through other leaks, the NSA had not received the warrant from the Foreign Intelligence Surveillance Court necessary for such a program to be legal. Additionally, instead of the House and Senate Intelligence Committees reviewing the program in accordance with the Foreign Intelligence Surveillance Act, the government instead allowed select congressmen to review the program periodically. Another area of major concern is the massive database that the NSA has in its possession. Although the NSA specifically targets communications involving foreigners when collecting data, collection of communications that are solely domestic is not a rare occurrence by any means. This is due in part to loopholes in the system as well as technical mishaps. The most prominent examples of these loopholes are that if the data is encrypted, is “evidence of a crime [,] or information about communications security vulnerabilities”, then it is considered fair game no matter what its location may be. As far as the technical aspect is concerned, according to documents leaked by Edward Snowden, technical error, such as the jumbling of algorithms used to determine the IP address belonging to a piece of data, and system complexity have lead to mass collection of U.S data. Lastly, regulatory issues have proven to be a point of dissention between the proponents and critics of the NSA’s surveillance program. Based on documents leaked by Edward Snowden, in 2011, internal audits of the NSA showed over 1,000 violations of both the Constitution and laws, yet neither the president nor the Federal Intelligence Surveillance Court were notified. Furthermore, some contend that the Foreign Intelligence Surveillance Court was created in order to oversee national investigations, not monitor the technical juggernaut that is the NSA’s surveillance program. Despite these controversies, proponents of the program have remained steadfast in their assertion that what the NSA is doing is completely legal. According to NSA spokeswoman Vanee Vines, the "NSA's foreign intelligence collection activities are continually audited and overseen internally and externally. When we make a mistake in carrying out our foreign intelligence mission, we report the issue internally and to federal overseers and aggressively get to the bottom of it". Also, both President Obama and President Bush have maintained that the program is legal and within their authority to authorize it. In a 2005 speech, Bush reiterated that authorization of the surveillance program is “fully consistent” with his "constitutional responsibilities and authorities".
Despite this assertion by Bush and other supporters of the NSA’s surveillance program, the role that the executive branch played in creating this program and even the program itself have been blatantly unconstitutional. When one looks at the major concepts that the Constitution was built around, the separation of powers and checks and balances are at the forefront. According to the Constitution, it is the job of the legislative branch to pass laws while it is the duty of the executive branch to enforce them. However, when the NSA surveillance program was initiated by the executive branch, there was no law passed and the only basis for its warrantless surveillance was the USA PATRIOT Act. Although this act states that federal officials have the right to investigate or protect against possible terror attacks, at no point in this piece of legislation does it give the NSA the right to commence a warrantless wiretapping program. Furthermore, the USA PATRIOT Act even states that “Coordination authorized...shall not preclude the certification required by section 104” of the Foreign Intelligence Surveillance Act. What’s more, the only checks and balances placed on the program come from the Foreign Intelligence Surveillance Court, for which Bush showed total disregard. Due to this breach of the Constitution, the executive branch put in jeopardy the separation of powers. As James Madison eloquently stated in Federalist Paper No. 47, “the very definition of tyranny” is “the accumulation of all powers, legislative, executive, and judiciary, in the same hands”. Also, the content of the surveillance program itself is clearly unconstitutional. The fourth amendment states that people have a right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”. In other words, we are protected from “unreasonable searches and seizures” and may only be searched if a judge issues a warrant based on probable cause describing the specifics of the search or seizure, which was obviously not the case during the Bush presidency. Additionally, according to a 2013 report by the Wall Street Journal, the NSA’s ability to collect information “reasonably believed to contain...evidence of a crime” can oftentimes lead to someone being prosecuted based on illegally obtained evidence, which is another violation of our rights.
Altogether, the NSA’s domestic surveillance program must be stopped. Although the terrorist threat is a danger to our nation and our peace of mind, less intruding methods must be developed. For if this program is left unabated, we may find ourselves on a slippery slope towards a world where we have neither freedom nor the rights and liberty that we have come to expect. As the great Benjamin Franklin once said, “Those who sacrifice liberty for security deserve neither.”