One of the most controversial topics of conversation today may be that of warrantless collection of personal electronic communication data in the United States. As recently as April 1, 2014, the United States government acknowledged that it has collected the private communications of U.S. citizens, and that it has examined the data gathered when it believes it is necessary to detect and prevent a terrorist attack with illegal and warrantless searches (“U.S. Confirms,” 2014). This and other revelations about the program over the past several years have resulted in loud and vigorous debates about whether it is appropriate in a democracy. Proponents, especially those in the government, tout the necessity of keeping citizens and the country safe. On the other side of the argument, opponents of the program make robust arguments against the collection of our communication data.
One line of reasoning that may be espoused by opponents is that the gathering of the information violates the constitutional protection against unreasonable search and seizure, and similar arguments that challenge its legality. Other critics may opine that the intrusiveness is out of balance with the good that is actually done with the data being gathered. An analysis of the process, its legality, and the potential benefit to the American people is necessary to make an informed decision about whether the so-called warrantless surveillance program has value. When that is accomplished, it becomes clear that the program is legally defensible and provides real benefits to U.S. citizens.
Before analyzing the legality and value of the collection of communication data, it is important to understand to some degree the mechanics of the system. Harris gives an excellent summary of the nuts and bolts of the program in his National Journal article, “How Does the NSA Spy” (2006)? He relates that the National Security Agency gathers raw data in bulk from telecommunication companies, and then screens the portions identified as having a legal basis for analysis using ultra-sophisticated computer hardware and software to identify indicators that rate further examination by a human analyst (48-49). In theory, this initial scrub by the Novel Intelligence from Massive Data (NIMD) program (Harris, 48) makes an impossible task manageable by weeding out useless information and allowing human experts to analyze data that have the best chance of providing information that indicates a potential terrorist plot. For a large percentage of Americans whose data is collected and identified as being legal to analyze, then, no one is privy to their private communication.
Even so, Harris notes, the lion’s share of research and development dollars are spent on methods to gather and analyze data, and little money is spent on research regarding the development of ways to protect a person's right to privacy (49). The potential does exist that the technology could be used to see personal data on a more routine basis in the future. The major positive attribute to the system, however, has less to do with privacy. The biggest advantage of NIMD may be that it is designed to see links and patterns in data that would likely not be noticed by the limited natural computing power people possess, and that it can even take particular analysts’ personal biases into account when reporting what data should be looked into by humans (48).
Is this collection, potential viewing and, perhaps, analysis of personal e-mail and voice communication by machines and people legal? The question is basic to our very legal foundation, and necessitates thorough discussion.
The Fourth Amendment of the Constitution gives basic protection against unreasonable search and seizure, but allows for searches with a warrant: “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation…”
Within these guidelines, it is fairly clear that there must be probable cause to believe a crime is being committed for a warrant to be issued. According to Clark (2010), if a warrant for collection of electronic communication is to be considered legal, it would have to be authorized under the provisions of one or the other of two statutes: Title III of the Omnibus Crime Control Act of 1968, or, more applicable in this instance, the Foreign Intelligence Surveillance Act (FISA) (390). The first authorizes a warrant when there is probable cause to believe intercepting a communication will result in evidence of a crime, and the second when there is probable cause to believe a person is an agent of a terrorist organization or a foreign government (390).
Collection of the private electronic communication on U.S. citizens outside of these circumstances, even by a government official, may be a felony under FISA (390-391), then, unless there is some other mechanism that makes it legal. It is clear that no warrant was issued for the formation of the program that effects the wholesale collection and potential analysis of the electronic communications of U.S. citizens. Instead, the program has been authorized by the Executive Branch, starting with President George W. Bush (391-392). To be collected and analyzed under this authorization, however, one end of the communication must be outside of the United States, a circumstance that brings the foreign intelligence aspect into play (391). According to the USA Today article cited above, a secret FISA court apparently vetted the program and authorized the collection of data in 2011, and the data has been archived for future analysis if it is determined there is a legal basis to do so.
Part of the legal basis of the large-scale collection of data may also be the screening of data by NIMD. MacArthur (2007) discusses the fact that the scrubbing of data by computers makes it less likely that a human will see private communication, which he relates has been cited in court rulings (457). The concept that a computer cannot intrude on a person’s privacy may end up being significant to future challenges to the data-mining and surveillance programs.
The most important facet of the discussion of legality, however, may be that there is a legal precedent for the collection of general information about communication to or from U.S. citizens prior to determining the need for examining the contents of it. As Krauthammer describes in his editorial about data mining, it has been legal for many years for law enforcement to conduct a “mail cover” with the cooperation of the United States Postal Service (2013). The concept is that the postal service can copy the outside of the envelope that is addressed to someone without a warrant, and provide it to law enforcement. The contents of any particular piece of mail, however, may not be examined without a warrant (2013). Krauthammer equates data mining with the mail cover, stating
the National Security Agency’s recording of U.S. phone data does basically that with the telephone. It records who is calling whom — the outside of the envelope, as it were. The content of the conversation, however, is like the letter inside the envelope. It may not be opened without a court order. (2013)
Similarly, he notes in the same editorial that the U.S. Supreme Court, in Smith v. Maryland, ruled in 1979 that the content of a telephone call was protected, but not the record of a call being made, as the expectation of privacy extended only to the conversation. These precedents are, perhaps, the strongest arguments for the legality of the gathering of data, even that of U.S. citizens, for possible future analysis. Whether or not these facts are the basis for the defense of the program, the legal rationale will need to be sturdy. MacArthur refers to more than twenty class-action lawsuits alone as of the date of his 2007 article (457).
Setting aside the discussion of whether or not the program is within the law, is there a benefit received in exchange for the potential erosion of privacy associated with the data collection? When the goals of terrorists are considered alongside the successes publicly attributed to the program, the answer is resoundingly positive.
The tragic effects of the terrorist attacks of September 11, 2001 are common knowledge, as is the paradigm shift they caused in the United States. It is difficult and perhaps impossible to find discussion related to warrantless surveillance of any kind prior to that date. An impact of the attacks, when coordinated terrorist incidents murdered nearly 3000 people, was that it spurred an effort by the U.S. government to determine whether methods used to gather intelligence were effective enough. The attacks clearly showed the terrible intent the United States’ adversaries have, and the review of intelligence gathering capability just as clearly showed the U.S. needed to be as committed in gathering information that may prevent attacks as its enemies were in plotting to cause harm to the U.S. and its citizens.
It is quite possible, due to the unprecedented secrecy surrounding the data mining and analysis program, that any number of terrorist attacks have been stopped as a result of it without the general public knowing of the success. An analysis of recently reported events in the news media hints at the success of the program, as in at least two instances, data from the program apparently thwarted terrorist plots.
One of these instances is the case of Jamshid Muhtorov, a refugee from Uzbekistan who lives in Aurora, Colorado. According to a report by Perez and Martinez (2013), Muhtorov planned to travel overseas to fight as part of the Islamic Jihad Union, an organization identified by the U.S. Government as taking part in terrorism in Uzbekistan and attacks on coalition forces in Afghanistan. Perez and Martinez relate prosecutors disclosed that it intends to present evidence “obtained or derived from acquisition of foreign intelligence information conducted pursuant to [FISA].” While it does not appear Muhtorov intended to attack targets in the United States, the potential existed for his attacking of Americans in Afghanistan, which appears to demonstrate a successful outcome in this instance of the use of the program.
Another indication of the program’s efficacy may be the case of Khalid Ouazzani of Kansas City Missouri, who entered a guilty plea for providing support to a terrorist organization. (“Al Qaeda Supporter,” 2013). According to details reported by dozens of news organizations, Ouazzani provided financing and money laundering services to a terrorist cell that planned to detonate explosives at the New York Stock Exchange, a plot which was brought to light by NSA activities described above, and resulted in his being sentenced to 14 years in prison.
These two successes may be the tip of the iceberg, however. In testimony before the House Intelligence Committee last year, reported by Fox News, NSA Director General Keith Alexander “asserted that the agency’s surveillance programs have helped prevent over 50 potential terrorist attacks” (“NSA: Our Surveillance,” 2013) since September 11, 2001.
In the testimony, Fox News reported, Alexander and Sean Joyce, Deputy Director of the FBI, cited the thwarting of the New York Stock Exchange bombing, as well as the breaking up of a plan to attack people on subways in New York with bombs in backpacks. Joyce described specifically the process by which the subway plot was stopped, relating that NSA intercepts of communications between someone in the U.S and a known terrorist in Afghanistan indicated the two were talking about “perfecting a recipe for explosives” (2013). Joyce further related in the testimony that the FBI identified the man, Najibullah Zazi, in Denver, Colorado, and followed him to New York City, where he was arrested with bomb-making components in a backpack.
Describing “the first core al Qaeda plot directed from Pakistan” (2013) since September 11, 2001, Joyce related NSA provided information regarding an individual involved in the planned attack, which allowed the plan to be halted. The information was again discovered due to the monitoring of an individual outside the U.S. communicating with someone in the U.S. The exact plot was not described by Joyce in his testimony, but it is safe to assume it involved death and injury to civilians.
In a final instance described in the news coverage by Fox, Joyce confirmed that it was NSA information that led to the capture of Ouazzani in Kansas City. He stated information regarding a “known extremist” (2013) in Yemen communicating with Ouazzani allowed FBI to disrupt the plot very early in the planning process.
This disruption, along with the plot directed from Pakistan and the arrest of Muhtorov, when added to the perhaps 50 other successes referred to during Alexander’s and Joyce’s testimony, demonstrates that the so-called warrantless surveillance program has real and material benefits to U.S. citizens. The fact that the data gathered by the program is only allowed to be used under certain circumstances and is legally protected otherwise makes it clear that the tradeoff is weighted in the favor of U.S. citizens. For a minimal potential loss of privacy, they receive a service that, while not foolproof, adds a significant layer of protection from violence to their daily lives.
This is not likely to reduce opposition to the program by those who are against it. Opponents will always contend that the gathering of the information violates constitutional protections. Others will say the intrusiveness is out of balance with the benefit realized by U.S. citizens. When an analysis of the process itself, its legal basis and its successes to date is conducted, it becomes clear that the program is legally defensible and beneficial, even necessary, at this point in our history.
Al Qaeda supporter pleads guilty to supporting terrorist organization (2010). Federal Bureau of Investigation. Retrieved from www.fbi.gov.
Clark, K. (2010). The architecture of accountability: A case study of the warrantless surveillance program. Brigham Young University Law Review, 2010(2), 357-419. Retrieved from the ProQuest database.
Harris, S. (2006). How does the NSA spy? National Journal, 38, 47-49. Retrieved from the ProQuest database.
Krauthammer, C. (2013). Pushing the envelope, NSA-style. The Washington Post. Retrieved from www.washingtonpost.com
MacArthur, A. P. (2007). NSA phone call database: The problematic acquisition and mining of call records in the United States, Canada, the United Kingdom, and Australia. Duke Journal of Comparative and International Law, 17, 441-481. Retrieved from the Hein Online database.
NSA: Our surveillance stopped over 50 terror attacks since 9/11. Fox News Insider. Retrieved from www.foxnewsinsider.com.
Perez, E. & Martinez M. (2013). In a first, U.S. to use NSA surveillance against terror suspect. Cable News Network. www.cnn.com.
The Constitution of the United States: A Transcription. (n.d.). National Archives and Records Administration. Retrieved from www.archives.gov.
U.S. confirms warrantless searches of Americans. (2014). USA Today. Retrieved from http://www.usatoday.com.