Why the NSA's Unwarranted Monitoring of Communications by U.S. Citizens is Unconstitutional

Recent information has come to light revealing how the NSA has circumvented the right to privacy protections granted by the Constitution of the United States. The NSA has abused its power by spying on and collecting the communications of American citizens without due process, and this raises valid grounds for concern among all Americans as to whether our rights are being respected or eroded away in the name of national security interests.

Colorado Senator Mark Udall has been a leading advocate for curtailing what he has referred to as the NSA's unchecked authority in the nation's domestic surveillance program. As a member of the U.S. Senate Select Committee on Intelligence, Udall has repeatedly called for a restructuring of the program with increased transparency. When it was announced in March 2014 that President Obama would support the senator's proposal to trim the bulk collection of phone records, Udall responded:

I will review the details of the president's proposal, but I am encouraged by reports that he has embraced my approach to ending the dragnet collection of Americans' private phone records. The Constitution is clear and Coloradans agree: the ongoing bulk collection of Americans' call records is an unacceptable invasion of our privacy that doesn't make us safer and must be brought to an end (Saccone 1).

It must be noted that there are strong proponents of the NSA's work who defend the surveillance measures taken as crucial to maintaining our safety in today's world. In August 2013, Spencer Ackerman, a reporter for The Guardian scored a rare interview with Bobby Ray Inman. Mr. Inman served as National Security Agency Director from 1977-1981. Inman, "strongly defended the agency's bulk surveillance of phone records and internet communications" and contended that those in Congress who were demanding limits be placed on the program did not understand it fully or grasp how it functioned (Ackerman 1).

Inman readily admitted the world had changed drastically since his tenure ended in 1981. He commented, “Let's be realistic that this is a problem that's been generated in large measure with the explosion of communications…It is a different world” (Ackerman 2). Although Inman believes there is a need for collecting private communications, it is important to note that he also believes parameters must be in place to monitor those actions. In his own words, “I don't have a problem with the bulk collection, as long as there are rigid controls on how you can actually access what was said,” Inman said. Ackerman concludes her account of her interview with Inman with the sobering words “documents leaked by Snowden and published in the Guardian suggest that the NSA's controls are less than rigid. Among them are indications that the NSA possesses the authority to search through databases of foreign emails, phone calls and associated data for Americans' names and identifying information” (Ackerman 2). As much as we would have liked someone with Inman's ethics at the helm of the NSA during Snowden's tenure, it appears that was not the case.

Michelle Van Cleave, writing in the November/December issue of World Affairs takes the position that the very strength of our democracy, in fact the American experiment is our capacity to protect our unique freedoms while evolving to meet the demands of an ever-changing world so that we may continue protecting our liberties and our lives simultaneously. Van Cleave asserts, “Our obligation as citizens is to conserve what is good and enduring while changing and improving what we must. Those choices are not always easy, especially when they involve making decisions about things that must by their nature be secret in order to help keep us free” (Van Cleave 1). This begs the question, when do our leaders ask us to make choices or pay prices that are too dear? To be more specific, when do we evolve past the very liberties we are attempting to conserve? Have we reached that point yet, or are we headed down that slippery slope?

In his aptly titled piece, "Orwell Was An Optimist: The Evolution of Privacy in the United States and Its De-evolution for American Employees," Professor Robert Sprague makes the case that the American people have already lost most of their right to privacy, but not to their government, but to their employers. Sprague contends, “Technology has created an expectation of privacy where one did not previously exist. But in most cases, technology has eroded expectations of privacy-and, consequently, one's right to privacy” (83).

Professor Sprague proves his point by walking his reader through the job application process. Potential employees are “screened through personality tests, investigated by databases that uncover extensive financial and transactional histories, and scrutinized by what they publish or what is published about them on the Internet” (Sprague 84). The author also brings up a sobering thought: every move we make at our places of employment (or in public for that matter) is subject to videotaping or being recorded by the machines we use. That's not all. If we use a company car, Smartphone, or car, our employees can track our usage or our location through GPS tracking at anytime. As Sprague succinctly puts it, “The employer has the potential to be a Big Brother, always watching, listening, and recording” (84). So should we really be surprised our government has used this technology in the same way? However, lack of surprise should not be construed as acquiescence.

Professor Sprague points out “the United States Constitution does not contain the word privacy” however, “it is reflected in [the] concepts of individualism (through private religious judgment, private economic motives, and legal rights for individuals), limited government, and private property” (102).

In his article on The Dangers of Surveillance, for Harvard Law Review, author Neil M. Richards theorizes that people have been able to contend with the idea of “constant surveillance” because until recently the idea has been “relegated to the realms of science fiction and failed totalitarian states” (1934). That is no longer the case. The future is now. Whatever you think of Edward Snowden, the world is now aware that the NSA has been and continues to build a “massive data and supercomputing center in Utah, apparently with the goal of intercepting and storing much of the world’s Internet communications for decryption and analysis” (1934).

Richards brings up an alarming point. The data collected by the government may initially be for ferreting out terrorists, not spying on American citizens. But, what about information they find along the way that could be embarrassing to U.S. citizens, or even used against them? Richards asserts, “Information collected surreptitiously can be used to blackmail or discredit opponents by revealing embarrassing secrets.” The author points to troubling examples from America's past such as J. Edgar Hoover's blackmail of Martin Luther King, Jr. as proof of his contention and it is a troubling thought indeed. We do have laws do protect us. However, in light of new technology and the new surveillance methods, Richards makes a strong argument in recommending that we strengthen existing laws to protect our “vital civil liberties.”

In his article for Ethics & International Affairs, George R. Lucas, Jr. actually admits that Edward Snowden was right—about one thing: “the notion of publicity and informed consent, which together constitute the hallmark of democratic public policy” (29). Lucas continues: “In order to be morally justifiable, any strategy or policy involving the body politic must be one to which it would voluntarily assent when fully informed about it” (29).

Unfortunately, the American people were never given the opportunity to give their consent or let their objections be heard. However, Lucas suggests an interesting scenario: Suppose, “the Director of National Intelligence or the Director of the U.S. National Security Agency…had made a simple, frank statement to American citizens and citizens of allied countries that the intelligence services of these states were cooperating to monitor the patterns of telephone and electronic communication in the cyber domain in an effort to discern and prevent criminal and terrorist conspiracies from coming to fruition” (29). Lucas also suggests, they could have gone on to say they were developing a protocol to provide oversight and accountability for the new program. We can only wonder what a different place America would find itself in today had that course been followed.

Instead, our government chose to pursue this surveillance program in the shadows. In the process, our government has lost the faith and trust of its people, our allies, and the world community.

Works Cited

Ackerman, Spencer. "US Should Re-evaluate Surveillance Laws, ex-NSA Chief Acknowledges." The Guardian, 30 August 2013.

Lucas, George R. Jr. "NSA Management Directive #424: Secrecy and Privacy in the Aftermath of Edward Snowden." Ethics & International Affairs, no. 1, 2014, 29-38.

Richards, Neil, M. "The Dangers Of Surveillance." Harvard Law Review 126.7 (2013): 1934-1965.

Saccone. Mike. "Udall Welcomes Reports the President Will Heed His Call to End NSA Dragnet, Protect Constitutional Rights." 25 March 2014.

Sprague, Robert." Orwell was an Optimist: The Evolution of Privacy in the United States and Its De-Evolution for American Employees." J. Marshall Law Review 83 (2008): 83-134.

Van Cleave, Michelle. "What It Takes: In Defense of the NSA." World Affairs Journal, November/December 2013.