Seven years after one special whistle-blower exposed the National Security Agency’s (NSA) mass surveillance and the 5 lawsuits in consequence, the American judiciary system has finally ruled the program illegal and unconstitutional. On 2nd September 2020, the US Court of Appeals for the Ninth Circuit ultimately passed the verdict deeming the program of collecting millions of phone records as illegal.
What started as a Terrorist Surveillance Program (TSP) by the NSA in the wake of the 9/11 attacks, transformed into the great dragnet of metadata collection across the country, popularly known as PRISM today. Though the concept behind the initiation of the program may have been the security of the people, its execution compromised the privacy of Americans.
A Brief History
“Today, our nation saw evil -- the very worst of human nature -- and we responded with the best of America. With the daring of our rescue workers, with the caring for strangers and neighbours who came to give blood and help in any way they could”
- President George W. Bush
The September 11, 2001 attacks gave rise to a new, highly vigilant government in the US that constantly looked to advance its war on terror, both internally and externally. A part of the then President George W Bush’s “President’s Surveillance Program” was the Terrorist Surveillance Program. It was used to track calls of American residents and to keep a record for tracing and implicating possible terrorist activities. The problem lay in the fact that initially, neither did it have oversight nor was it bound by the Foreign Intelligence Surveillance Act of 1978 (FISA). It was also a direct violation of the Fourth Amendment of the US Constitution, which prohibits infringement of the people’s privacy.
The program was initially brought into light in 2006 when the New York Times published an article on the same, which led to the filing of the first unsuccessful lawsuit by the American Civil Liberties Union (ACLU). As a result of the unnecessary attention, in 2007, PRISM began as a program under the supervision of the US Foreign Intelligence Surveillance Court, along with the passage of the Protect America Act Amendment to the FISA, which gave the NSA liberty to continue tapping people’s phone lines if “the government reasonably believed that there exists a threat within the country”.
It wasn’t public knowledge until the 2013 NSA leaks by whistle-blower Edward Snowden that TSP had been replaced by PRISM, which gave intelligence agencies newer power as they could then obtain online data such as e-mails, photographs, documents, and even connection logs of people, with the simple cooperation of Companies.
Legal controversies as a consequence of the leaks
The 11th of June, 2013 was an important date for the Intelligence world. Speaking to The Guardian from Hong Kong, Edward Snowden leaked sensitive information about different programs and data, initiatives and resources of different Intelligence agencies around the world, the most prominent being the NSA, his former workplace.[1] It was succeeding this interview that hurdles began coming at the US Government and the NSA. The ACLU and FreedomWatch USA immediately filed lawsuits against companies and the government bodies responsible for PRISM. The first was on the grounds of violation of the First and Fourth amendments, while the second was more concentrated on the companies’ breach of customers’ privacy in disclosure of communication records and other sensitive information.
The Jewel vs NSA lawsuit was seen headlining news channels. Filed in 2008 by Carolyn Jewel and other AT&T customers, it based its case on information revealed by a former employee. The case was surrounded with a lot of turbulence and was ultimately dismissed in 2010. Reinstated after the appeal to the Ninth Circuit Court, it was then taken up by the Electronic Frontier Foundation who filed it against the NSA and certain members of the Bush Administration.
The main points that the NSA had to counter with were that:
1) The claims and ruling were inadmissible because it was a state secrets privilege
2) No one can sue to stop illegal surveillance unless the court first determines that they were unquestionably touched by the vast surveillance mechanisms of the NSA.
A paradoxical situation arose because the court could not decide whether any particular person’s email, web searches, social media, or phone calls were touched by the surveillance unless the government admitted it, which it wouldn't.
Nevertheless, the case ended up not being dismissed on grounds of state secrets privilege in 2013 and following this, the government was ordered to elaborate on the consequences of the leaks which lead to actual declassification. Since a judgment had not been reached, the NSA began the destruction of evidence which was temporarily halted by a restraining order.
Fastforwarding to 2017, the government was ordered to provide "all relevant evidence necessary to prove or deny that plaintiffs were subject to NSA surveillance via tapping into the Internet backbone".
In 2018, the government announced that the PRISM program was being shut down, for the NSA claimed it to be “pointless” moving forward. Thus, no one knows the truth behind it.
Conclusion
Pose the question to yourself: Is the pretense of being able to identify and substantiate evidence against terrorist activities good enough to allow the government to take a peek into your life, especially in this digital age, where a major part of you is stored online on various databases?
Though the US Government has passed the Freedom Act- requiring government bodies to go through standard court procedures to obtain metadata on people- it does not place any restriction as to what grounds or what concrete evidence is required for the court to grant permission.
Moreover, a question arises whether the government itself is culpable of a federal crime as the 9th Circuit Court of Appeals stated.
To conclude, the government may have violated the Fourth Amendment and infringed the FISA when it collected the telephony metadata of millions of Americans, including at least one of the defendants. [2]
There also exists ambiguity on the future of Edward Snowden [3] after having disclosed indispensable information. He took action against what he saw as a fault in the system, the unethical approach to surveillance and information gathering by the Intelligence agencies around the world. All he wishes for is to go back to his homeland. Who is the true patriot in this scenario, the man who opened the eyes of the people, or the administration that refuses to grant him amnesty and continues to call him a traitor?
Presently, high-level officers display resentment to the idea of pardoning Edward Snowden, but Trump has conveyed his interest in looking into the matter, and we can only hope and pray that he makes the right decision for once. [4]
Article by-
Kiriti Kapavari,
PES MUN Society
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