In June 2013 Americans first learned that the National Security Agency (NSA) engages in programs that violate the personal privacy of U. S. citizens. Ever since, President Obama has made efforts to persuade citizens that any such programs are conducted with oversight that ensures a balance between security and privacy. Yet those claims are coming under close scrutiny in light of recent revelations that the NSA overstepped its authority and violated privacy rules more than 2700 times from April 2011 to March 2012.
On June 5, 2013, British newspaper the Guardian published its first article on the actions of the NSA in obtaining personal phone records from Verizon through the use of secret court orders. Subsequent stories revealed how the agency employed a program called Prism to gain direct access to data from Google, Facebook, Apple and other Internet companies.
In a July 25, 2013 article for the Guardian, “Edward Snowden and the NSA files — timeline,” Mirren Gidda outlined the flow of events surrounding these revelations. As the month wore on, more NSA programs came to light including one known as Boundless Informant.
Gidda explained that the internal tool Boundless Informant, “allows it [the NSA] to record and analyse where its data comes from, and raises questions about its repeated assurances to Congress that it cannot keep track of all the surveillance it performs on American communications.”
With the disclosure of each secret program came assurances from the president and calls for increased transparency.
Violations belie assurances of oversight
Defending NSA surveillance practices is likely to become more challenging in light of a May 2012 internal NSA report that entails more than 2,700 violations of privacy rules within a 12-month period. The report was leaked to the Washington Post, where its contents were covered by Barton Gellman in an August 15, 2013 article, “NSA broke privacy rules thousands of times per year, audit finds.”
Some of the violations resulted from errors such in the input of the wrong area code resulting in the interception of calls placed in Washington D.C. (code 202) instead of Egypt (code 20). In response to criticism that errors can result in the violations of privacy for millions of American citizens the agency counters that these errors constitute but a small percentage of its total activities. Reasons given for errors include:
- Workload issues
- Insufficient or inaccurate research
- Staff not following correct operating procedures
- Typos and overly broad search terms
- Training issues
- Computer systems not recognizing foreign cell phones
- Other system errors
Yet, according to Gellman, “There is no reliable way to calculate from the number of recorded compliance issues how many Americans have had their communications improperly collected, stored or distributed by the NSA.”
If I’m innocent why should I care?
Many Americans feel that if one has nothing to hide then there is no real violation or harm. Nothing could be further from the truth according to Daniel J. Solove.
In his May 15, 2011 article for The Chronicle of Higher Education titled, “Why Privacy Matters Even if You Have ‘Nothing to Hide’,” Solove delved into the deeper implications of the “nothing to hide” argument.
By way of example Solove asked readers to consider two individual pieces of information about your purchases: on the one hand, the purchase of a book about cancer and in another instance the purchase of a wig. One might purchase a wig for any number of reasons. “But combine those two pieces of information, and now the inference can be made that you have cancer and are undergoing chemotherapy. That might be a fact you wouldn’t mind sharing, but you’d certainly want to have the choice,” Solove wrote.
Americans tend to believe that their privacy is protected by the fourth amendment, which protects our persons, houses, papers, and effects against unreasonable search and seizure. Warrants allowing law enforcement to seize such data cannot be issued without probable cause.
In his book More Essential Than Ever: The Fourth Amendment in the Twenty-First Century, Stephen J. Schulhofer illustrated how these protections have become diluted. One threat takes the form of the national security letter (NSL), which allows federal organizations to obtain personal financial records, telecom billing reports and credit agency reports.
“Our financial transactions, for example, provide a detailed picture of our private lives. Nonetheless, the records available through the NSL do not receive even the cursory judicial protection available for other documents,” Schulholfer explained.
He added that since 2001, the FBI has issued nearly 50 thousand NSLs annually. Because of the Patriot Act the FBI does not have to prove probable cause. It merely has to certify that the information is “sought for an authorized investigation.”
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