Thursday, October 10, 2013
ACLU vs. NSA “Freedoms of Speech and the NSA Spying Program
Summary
In June 2013 The Guardian, a British newspaper, released leaked information divulged by NSA contractor Edward Snowden detailing the NSA’s data-mining and aggressive spying efforts on U.S. citizens through protections of the Patriot Act and other forms of legislation. The leak brought a firestorm on Capitol Hill as politicians scrambled to determine how deep the leaked information went. This sparked outrage, as Americans began to further mistrust the government. This case is an example of freedom of speech laws and how well they are protected by those who uphold our Constitution.
The American Civil Liberties Union (ACLU) brought a lawsuit against the NSA soon after the leak was made public. The ACLU alleged in their filed statement that “the program violates the First Amendment rights of free speech and association as well as the right of privacy protected by the Fourth Amendment. The complaint also charges that the dragnet program exceeds the authority that Congress provided through the Patriot Act” (Electronic Frontier Foundation, “Timeline of NSA Domestic Spying”).
Key Stakeholders
Washington, D.C.:
Domestic wiretapping was made legal as a result of the Patriot Act, which was a direct response to the events of September 11th and the realization of the domestic terror threat. Former President George W. Bush signed the Patriot Act into law after Congress nearly unanimously approved it. The law allows for warrantless communication line wire tapping in the efforts to thwart domestic terror activities. This undertaking was placed in the NSA’s hands.
National Security Agency (NSA)
The NSA has long been the subject of much criticism relating to their surveillance practices. Citizens and politicians alike have expressed concern over the legality and effectiveness of the Patriot Act.
Edward Snowden
Edward Snowden is a former NSA contractor whom, while under the employ of Booz Allen Hamilton, leaked information from U.S. and British security agencies to the British newspaper, The Guardian. Members of the media, politicians and citizens have labeled him a patriot, a traitor and a whistleblower across the globe.
Booz Allen Hamilton
Booz Allen Hamilton is a data-mining company contracted by the NSA to produce reports and run analytics on web-based searches and other telecommunications activity.
American Civil Liberties Union (ACLU)
The ACLU has brought lawsuits against the NSA prior to the 2013 filing. The ACLU’s legal actions against the NSA can be traced back to 2008 when the NSA filed a lawsuit as a part of a Freedom of Information request to force the NSA to release documents detailing their tracking of communications activities among Americans as a part of warrantless wire-tapping.
Verizon
The NSA, through a top secret court order, demanded Verizon hand over telephone records for millions of American customers. The order called for continued cooperation of information sharing on all calls made within its system over a three month period.
American Citizens
Americans are a main stakeholder in this case, as the NSA and its contractors monitored the communications of citizens as a part of the warrantless wire-tapping program protected by the Patriot Act.
Foreign Nationals
The NSA and its contractors have monitored the movements of “of interest” foreign nationals. The NSA’s data-mining program has reach far beyond U.S. borders and has named numerous individuals and groups on their “watch lists” via the XKeyscore program.
Political, social and economic ramifications
There are several political factors in play, none more important than the First and Fourth Amendment violations committed by the NSA, contractors and the U.S. government. The Patriot Act, its practices and validity, has, once again, been called into question, as more Americans, politicians and special interest groups have questioned the motives of the law.
The mistrust of the government has been the main social factor that has shaped the context of the issue. Americans have lost trust in the government and the NSA due to the violations of the First and Fourth Amendments. The ACLU, on behalf of the American people, have alleged that both parties and corresponding organizations have breached the civil liberties granted to American citizens.
The NSA spy program has also had global consequences. The Guardian has brought forth the notion that the spying program has been used to target Arab Americans suspected of terrorist activities.
Possible solutions to the problem
The reformation or repeal of the U.S. Patriot and the overhaul of the NSA’s domestic surveillance practices have been suggested as ways to ensure that American’s rights are not impinged by the NSA’s domestic surveillance program.
Links
http://www.theguardian.com/commentisfree/2013/jun/19/nsa-surveillance-muslim-arab-americans
https://www.aclu.org/national-security/aclu-files-lawsuit-challenging-constitutionality-nsa-phone-spying-program
http://www.huffingtonpost.com/2013/06/07/obama-nsa_n_3403389.html
What do you think?
Has the NSA overstepped its bounds trying to uphold national security?
Are the concerns of the ACLU and the lawsuit the organization brought valid?
Citations
"Timeline of NSA Domestic Spying | Electronic Frontier Foundation." Electronic
Frontier Foundation. N.p., 18 Sept. 2008. Web. 05 Oct. 2013.
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The NSA’s unwarranted monitoring of Americans through wire-tapping and phone records was understandable right after September 2001. However, how useful is it today? Did anything come about; did they catch any “terrorists”? I’m confused why the ACLU is claiming the monitoring is a violation against the First Amendment. The Fourth Amendment claim makes sense; freedom to privacy has certainly been violated on many counts. Whose speech was halted as a result of the Patriot Act? Newspapers were allowed (when the information broke) to report the story, so not the press.
ReplyDeleteI scanned through the Patriot Act document (http://www.gpo.gov/fdsys/pkg/PLAW-107publ56/pdf/PLAW-107publ56.pdf) and from my initial scan the document grants the government permission to watch electronic activities, request communication records, and fund the new law monitoring work in the FBI. I do not know all the facts and it would take more digging to understand the First Amendment claim, however on face value it does not seem like it’s a First Amendment violation. We could say it acts as a prior restraint on speech because the government is watching people and that will limit their speech out of fear, which then is a First Amendment violation. But since the Patriot Act was enacted in 2001, the information about the NSA watching citizens has now been leaked to the public, and the public is now aware that the NSA has been monitoring electronic activities for the last 12 years, how much speech was stopped in those 12 years? In order to restrict certain types of speech the government needs compelling reasons to justify the governmental interest in that speech. There was a legitimate reason in 2001, but how well is it still justified in 2013. It all depends on how they argue their points in court. I initially did not see the First Amendment claim but if they argue that it’s a prior restraint on speech now in 2013 since citizens have become aware of the NSA’s activities, the ACLU has a legitimate claim. The fourth amendment claim seems totally reasonable though. (In the words of Dr. Silver, “Love the Law” haha)
In response to your question, did they catch any terrorists, Sen. Dianne Feinstein (D-CA), has claimed that at least nine terror plots were prevented by the program, and has said “There have been 100 arrests to prevent something from happening in the United States, some of these plots have been thwarted because of this program." She argued in December to extend the Patriot Act for another five years. If only one plot to commit acts of terror on US citizens was stopped by this program does that constitute enough evidence to justify its continuing use? What is enough?
DeleteThank you, Shannon! Prior restraint is an interesting point. It is undeniably conceivable that the ACLU could be seeking legal recourse on the grounds of prior restraint, but since the details of who is/was being "watched" by the government and why, it is difficult for us to determine how solid the argument regarding prior restraint is. While it is all hearsay, we could deduce that the public's knowledge of the spying program before the leak did contribute to the suppression of opinion and speech.
DeleteCitizens who wished to speak out about the government, the War in Iraq, 9/11 or a myriad of other "hot-button" issues could have lived in fear about publicizing their opinions under the impression that their conversations and interactions could have been tracked.
The idea and concept of freedom of speech is a touchy one here. In general, I'd say the common notion of it is the ability to say and express publicly what you want without impediment, and on the flip side, keep private conversation and discourse protected without the prying eyes of outside audiences. Unfortunately/fortunately our founding fathers worded the Constitution and Bill of Rights to be vague enough to make them "living" documents that can change and adapt with the times.
ReplyDeleteI'd have to agree with Shannon with how the First Amendment is technically and legally interpreted. Perhaps this is an opportunity to expand the concept and notion of what Freedom of Speech means in modern times, and the ACLU could potentially lead the way with that discourse. I don't think our founding fathers had the notion that private communications could have been jeopardized or infringed upon unless a trusted confidant spilled the beans or a letter of correspondence was intercepted. And in those circumstances, it usually came down to personal negligence and ill-judgement.
Unfortunately, the Patriot Act is the major road block standing between the ACLU and the constitution. Seeing as "public spying" was written into the document, I don't see, technically and officially speaking, how the NSA overstepped it's bounds except in regards to allegations of its spying on foreign governments. I think the root of the argument really just hearkens back to the legitimacy of the Patriot Act and whether it is still needed and/or useful to national security a decade later. I think Snowden's leaks were the physical evidence the press, media and public sphere needed to make it a viable topic for scrutiny and continue the topic and debate that appeared to be growing cold in recent years. I just hope this is the case and that the ACLU hasn't just been sitting on the issue knowing that public spying has been going on in theory the past 12 years. All-in-all, I'm hoping the ACLU finds some footing and that this could re-open the argument against the Patriot Act and it's un-constitutional nature. They might need to re-position themselves instead of saying that spying is an infringement on the constitution, that the document allowing the spying is an infringement on the constitution.
The American Civil Liberties Union filed a new lawsuit today in a New York federal court against the Justice Department, demanding information concerning anyone who has been detained as a result of the Foreign Intelligence Surveillance Act (FISA) Amendments Act. The suit was brought about as a result of a case against two Pakistani brothers. Evidence was collected on the brothers as a result of domestic surveillance. Part of the evidence used was proof that at least one of the brothers was searching Al Qaeda websites for how to make a bomb. The article states that the “US Solicitor General Donald Verrilli Jr. is arguing internally that there is ‘no legal basis’ for failing to disclose to defendants if they were a target of the warrantless surveillance.” Should these two men have the right to know how the evidence was collected against them? Is this the suit to gain the ACLU a victory against domestic surveillance?
Deletehttp://arstechnica.com/tech-policy/2013/10/aclu-sues-feds-for-hiding-nsa-spying-from-terror-defendant/
Great discussion here. I just wanted to note that I invited John Ferrugia, an award winning investigative reporter from TV Channel7 to my other class yesterday and asked him about whether any of the fallout from the Snowden case had impacted his work (particularly related to whistleblowers, etc.). He said that his greatest concern today was how starting with the Bush Administration and now with Obama that more public information and records are no longer available to the press and public. He said that the Snowden case at the national/international level appears to have had a trickle down effect where media have to sue to get access to public records or pay exhorbitant fees. He gave an example of going to Rifle, Colorado and asking for information on salaries of public officials to which the response was "no." He countered with his First Amendment rights as a reporter and the official said, "so sue us." (So even if this response violated the constitution, it takes alot of money and time that many media organizations do not have to take action.) So my overall concern in this case as well as the Snowden case and also with the growing trend of classifying (or not declassifying) enormous amounts of material to block it from public access, is that it severely limits the "watchdog" role for the press, much less the public, and vice versa, that the government can do pretty much what it wants (spying on people, putting people on no-fly lists without giving them a reason, etc.) with limited legislative or judicial oversight, much less recourse for the public. I agree that terrorism is a very big concern but so much is happening in the name of fighting "terrorism," that to me steps over the bounds. I'm concerned that this ongoing shift by the government may also be used to target opposition groups who are not advocating violence or anything near to terrorist activity but are viewed as "subversive." This is a huge problem in Latin America where the old "communist" label was used as an excuse for massive human rights violations, coups, and invasions and today it's "terrorism."
DeleteSo this creates a double-edged sword for PR practitioners whose ethics today call for a greater push toward more transparency and accountability, which is an ironic contrast to the growing secrecy and lack of transparency by the government. But at the same time, what are the implications of these trends for corporations and nonprofits? Are they the focus of growing scrutiny by the government or on the other hand, are some able hide certain questionable activities or corruption more easily? We talked about the importance of global media and how, for example, transnational corporations operating in other countries often have a harder time to hide things, but how does the Snowden case and all of the related issues impact these organizations?
Great points, Margie! Thank you. I believe that domestically operating organizations have a harder time keeping this "secret" due to the disclosure of information that binds their abilities to operate here. As we have discussed in class, domestic organizations operating in foreign lands are subjected more to the laws of the countries they operate in, more so than the nation where they are based. Different countries have different laws regarding information disclosure, and it much easier for a corporation to hide behind another country's laws of disclosure.
DeleteEdward Snowden's leak caused a major shake up in transparency. I believe that corporation's are now terrified of what information could now be made public by those willing to present it. Many have heralded Snowden as a hero and hope that more people come forth with information regarding egregious offenses committed by governments and corporations.
The PR professionals representing these entities must now perform a balancing on act with undisclosed information and that which the public already knows. Can they simply sweep it under the rug, or do they come forth with all malfeasance committed by those they represent? Full disclosure, while gallant in effort, will caused an effect similar to pouring water from a large bucket. Hiding the information will only add to the bucket's size and contents later. Simply put, how does an organization address issues that the public doesn't already know.
What if Nike were to gain knowledge that their shoes are being made by children in hostile work environments in a foreign country? Do they address the issue and move operations in favor of safer conditions and a more qualified workforce, or do they hide behind the country's laws allowing child labor?
While there can be much debate about the intricacies and nuances of the law in this case, the most important strategic communications issue is the mistrust this issue has bred in public about the American government.
ReplyDeletePer this article in the Guardian around the time the NSA data-mining news broke, (http://www.theguardian.com/commentisfree/2013/jun/13/poll-obama-nsa-leaks-trust), trust in the American government was crumbling. I understand the need for certain programs to be classified. There are so many things we don't know about that the government does and has been doing for a very long time. The issue of transparency is one that supplies a rigorous ethical and strategic debate. As for the image issues facing the government, I think transparency is critical in order to ensure the people of America are well informed on the programs and activities being carried out and how they affect their rights. Having said that, complete transparency in many cases is unrealistic. In order for certain programs and activities to be successful, they must be classified to protect their integrity, and in some cases, the individuals involved, thus creating a battle between ethics and strategy.
Do I think that the NSA overstepped its bounds? My personal opinion is yes. I don't see the need for such violations of speech and privacy, even if it is framed as being for the greater good. It invites the slow erosion of those freedoms we hold so dear. I do think that there are grounds for the ACLU to engage in a legal battle over First and Fourth Amendment rights violations. Per Shannon's point about prior restraint on speech, this collection of information inherently changes the nature of communications between people who are aware that they are targets.
In a broad sense, I worry that this entire situation inspires a greater sense of fear in people. For Americans, it could incite fear that they are being spied on, that their rights are being infringed upon. Furthermore, it creates more fear of Muslim- and Arab-Americans. If our government is monitoring this population so vigilantly, is tells the public that we have something very real to fear, which can be a catalyst for greater divisiveness between our cultures and communities.
Hi Ashley,
DeleteI agree with you that the NSA has overstepped its bounds. Freedom of speech and the guarantee of privacy are two things on which our society places great importance. The recent spying tactics of the NSA call into question some of the fundamental principles of democracy. Transparency would be an effective way to solve this debate, but I think we can never expect full disclosure from our government.
I like your final point about the government's interest in Muslim and Arab-Americans as creating further division within our communities. Their monitoring of specific cultural groups neutralizes the recent efforts have have been made to rid the American publics of these prejudices. I wonder if the government or Arab-American community could launch a communication campaign to counteract the division of cultures. If the goal of the campaign was to contradict the general mistrust of Arab-Americans, what kind of messaging would be most effective?
I agree with David that this argument points back to the legitimacy of the Patriot Act. In the 12 years since the instating of the act, citizens have become numb to the constant threat of terrorist attacks. While the Patriot Act seemed like a necessary component in the war on terrorism in 2001, the public has lost the feeling of eminent danger and instead prioritizes their personal privacy. The freedoms of speech laws seem to be constantly reexamined when issues such as this arise. While the monitoring of phone calls may have seemed logical and constitutional in a time of crisis, the reinstating of the act 12 years later does call for speculation.
ReplyDeleteAfter various Google searches, I found it unsurprising that it was a British newspaper that leaked the information about the phone tapping under the Patriot Act. Other countries seem just as concerned by the breech of privacy by the National Security Agency. Much debate has surfaced surrounding the worldwide use of “cloudsharing”. Foreign universities that use Google Apps worry that they are subjecting their students to the policies of the Patriot Act. For example, the University of Cambridge has published on their website not only their contract with Google, but also a statement informing students that they “risk disclosure of data under US law”. This, as well as articles like the one in The Guardian, underlines other nation’s paranoia about the aggressive spying tactics implemented here in the US. To take the discussion in another direction; do you believe that the Patriot Act will affect the success of businesses such as Google and Verizon? How will companies with access to personal data adjust to still satisfy their customers?
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DeleteAs PR practitioners, this whole situation is very alarming to the work that we do. How can we be living in an age of transparency when our efforts to be transparent are being monitored by the government? And what incentive do we have as journalists to tell the truth if we are being asked to pay large fines for information or being told “no”?
ReplyDeleteAs a result, I beg the question: Are we really living in an age of transparency? Or has transparency simply become commenting about products in the confines of corporate social media sites?
For starters, we need to question whether or not this is really a transparent age, what that means, or if we are all fooling ourselves by getting ecstatic about the fact that Kitchen Aid gave a consumer a new blender because it was smoking. In other words, we should pay attention to where we are focusing our efforts for more transparency, because as Ashley noted, the pressure to be more transparent is obviously not on our own government.
One could argue that transparency is written in the law, but let’s be honest, average Americans are not reading the Patriot Act at night. Accordingly, what is more frustrating is that when we plan on getting our news/truth from certain outlets, we always run the risk of reading propaganda from corporate news outlets with political angles that force us to read between the lines. Thus, we arrive at another struggle for transparency in our news.
It appears that the majority of Americans are not even pushing for more transparency about what the NSA is doing with their information: “A new Washington Post-ABC News poll shows that a majority of Americans -- 53 percent -- now say the Snowden should be charged with a crime for his leaks. That's up from 43 percent less than a month ago. Over that same span, the percentage saying Snowden should not be charged has dropped from 48 percent to 36 percent.”
Accordingly, if Americans are not even concerned about the need for more transparency from the government, then are we really living in a transparent age? The only transparency I see going around is that of holding brands accountable via social media.
If our own government is hiding information from us, and then using it against us, however, I do not see any incentive for brands to continue to be transparent. Rather, I see a cultural shift in the country moving away from that so called transparency. This whole situation is viable to our field, but makes us ask questions that we may not even know the answers to.
I better go now, because I’m certain we have all been flagged on this Blogger site. ;)