Fighting Terrorism in the Name of Illegal and Warrantless Searches

The use of surveillance has been around for decades. However, President Bush enacted illegal surveillance of American citizens beginning in October 2001 in the name of terrorism. The terrorist attacks on 9/11 spurred the beginning of what would seem to be an unlimited and increasing amount of illegal and warrantless surveillance and searching of American citizens online, through various communications, and even as far as their personhood. The increase in “security” measures, all in the name of homeland security has taken on an unprecedented and dramatic increase over the last 15 years (Electronic Frontier Foundation, 2014). Although it began with the Bush Administration, it continues under the Obama Administration, which also appears to be distancing itself from claiming any responsibility or acknowledging that it is taking place.

What kind of surveillance is occurring and what kind of information is obtained? The primary initiation of the surveillance had much to do with electronic communications and telephone wiretapping. Email, web-use and telephone conversations were being monitored. Initially, it was said to focus on a select portion of the population that was perceived to be a threat to the citizenry. When in fact, it was later discovered and admitted being wide-sweeping and to include every citizen in the United States of America. What has become even more exacerbating is the subsequent use of data mining. Forced submission of data records from corporations to the government that violates the rights of individual customers in order to trace their behavior and use of services.

The next step included guilt by association accusations. Many organizations made allegations against the government for violating their First Amendment right of freedom of association when members could be targeted for suspicions based upon their membership to a group. The first amendment states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances (Charters of Freedom, 1789).

The first allegation came from the First Unitarian Church of Los Angeles vs. the (National Security Association) NSA. The case was handled by the Electronic Frontier Foundation (EFF), but the decision was appealed by the American Civil Liberties Union (ACLU) who claimed that the collection of data was, in fact, a violation of the constitution (ACLU, 2014).

The guilt by association philosophy was then expanded to include those who happen to use a specific communications carrier. In other words, there was no guilt associated with the use of said carrier. It was merely the means to obtain as many communications records as possible through a carrier that had a very large percentage of the population’s communications records. This was the case with Jewel vs. NSA (EFF, 2014). “Plaintiffs also allege that defendants have unlawfully solicited and obtained from telecommunications companies the private telephone and internet transactional records of those companies’ customers, indicating who the customers communicated with, when and for how long, among other sensitive information” (United States Courts, 2014). The primary company affiliated with this case was AT&T whose customer base at that point addressed 34.4 million American citizens. Their overall service reach topped 79 million citizens. One of the primary factors of concern with this claim was the violation of the Fourth Amendment which states:

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, and particularly describing the place to be searched, and the persons or things to be seized (Charters of Freedom, 1789).

This case was accepted for trial, but then later dismissed. An appeal has been filed and dismissed based on Sovereign Immunity (EFF, 2014). Intellectual, communication, and private internet use is not the only facet that has become a violation of American rights. Next to be discussed is the violation of personal and physical possessions for “safety” reasons when entering facilities or when traveling.

Anyone who has traveled in America since 9/11 has become very aware of the search and seizure procedures enacted at every airport. This procedure that is enacted by the Transportation Security Association (TSA) includes the magnetic imaging of each traveler’s luggage, physical body, and repossession of items that do not meet very strict limits on size or description. The most recent attack on the TS had to do with their use of body scanners that could literally provide a strip search without the passenger removing their clothing. The complaints by citizens grew monumentally, but the only factor that enabled the removal of these machines was the cancer threat they posed to citizens due to exposure to radiation (ProPublica.org, 2012). That does not, however, mean that new models aren’t being implemented that still pursue virtual strip searches in airports around the country. This isn’t the only violation found by the TSA at airports.

New reports offer that the TSA strip searches are not the newest challenge to Fourth Amendment rights in America (see Arizona VS. Hicks). It isn’t enough to have your bags searched, your shoes searched, and your physical body strip-searched virtually. Now if you choose to use the valet service at the airport, the TSA is ordered to search your car while you fly (Liebelson, 2013). A woman who recently used the valet parking option at the Greater Rochester International Airport returned from her trip to find a note from the TSA on her vehicle notifying her that her car was searched in her absence (Liebelson, 2013). This practice, which appears to be happening across the country according to research performed by Liebelson (2013), is that it not only violates privacy, it does so without the knowledge and consent of the owner of the vehicle. Many times, they were completely unaware that they left their vehicle in the hands of someone who would then have full access to everything inside of your vehicle. Although the caveat that grants this permission to do so falls under the concept of searching for explosives, valet attendants at LAX (Los Angeles International Airport) have blatantly admitted that they check the trunks of valet parked vehicles for valuables and make a record of all valuables in the trunk for purposes related to potential theft. This clearly violates the TSA’s permission to search for explosives exception. This also does not change even if the airport were to post a sign informing those who utilize valet services that their cars are now fully vulnerable to complete search in the owner’s absence. The major violation is that blanket searches without a warrant are a very distinct violation of Fourth Amendment rights.

Traveling in other countries, one will not be subjected to the same strict guidelines as they will find themselves exposed to in America. Although this is changing across the globe, it is still much more extreme in America than anywhere else. The fact that one would have to remove their flip-flop sandal to be inspected for a shoe explosive in Palm Springs, California headed to Munich, Germany, but not have to remove their heavy boots in Munich, Germany while going through security to board a plane headed for the United States says much about how this has nothing to do with protecting America. If that were the case, then all inbound flights would be subjected to high scrutiny, not just flights that leave America heading anywhere in the world. The rationale behind such procedures loses value when given the perspective of actual value vs. blind rules to follow that don’t offer protection, but certainly offer more job opportunities in security as well as more hassle in personal rights violations for American citizens. It seems that the American citizens have been taken under a guise of fear-based approaches to increase jobs more so than actual protection of their lives. However, using fear to gain the support of the American people ensures that these violations are allowed and supported by those whom it violates directly. Many citizens will blatantly state that they have no problem having their own rights violated if it means they will be safe. Therein lies the actual problem.

There has been some attention given to this subject. The fact that the government owes protection of its citizens, but seemingly is also handing over their protection in the name of safety tends to violate not only civil rights but human rights. The Inter-American Commission on Human Rights (2014) states that “the effective enforcement of rights involves positive and negative obligations at four levels: the obligation to respect, the obligation to protect, the obligation to ensure and the obligation to promote the right in question.” The commission’s definitions further describe the obligation to respect as non-interference with citizens’ access or enjoyment of resources available to them. The obligation to protect inhibits third-party intervention of access to resources. The obligation to ensure guaranteed access to resources. The final obligation is to promote the conditions essential for access and usage of resources. As noted previously in this paper, it is clear that the United States government is not protecting its citizens, but rather is violating their human rights and inhibiting their access, ability to utilize and creating obstacles that do not promote positive conditions for use of such resources.

As experienced with the AT&T lawsuit (Jewel vs. NSA), there have been subsequent attempts by the State to violate the private records of American citizens. It has become more common for corporations to make a stand about what they will and will not allow regarding customer service records. Google recently made headlines with its decision to participate in the demand to release search records of millions of Americans. Greenberg (2011) cites that Google hands over 94% of user data as requested by law enforcement without many inquisitions as to the purpose behind the request. This means that not only homeland security has access, but any law enforcement official can request access to information. The depth of impact this has on American citizens and the potential for abuse is substantial when blatant civil rights violations are taken to this extreme.

What this means is that citizens can not only be accused of terrorism based upon that 4 oz bottle of shampoo in their suitcase carry-on bag, but now unlawful sting operations can be posted online by local law enforcement that can be in the form of bait and switch scenarios. This is basic entrapment and has created numerous situations where unsuspecting citizens may find themselves accused of crimes such as child pornography or other similar heinous crimes based upon a search and mistaken click on what appears to be a legitimate link to something they may have been searching for. Just for a simple example of how easy it is for people to not know what they are clicking on, take the search for White House. Many an unsuspecting history teacher in America found themselves surprised that a google search for White House can lead to a website that is for adult entertainment only. Pornographic images are explicit on this clearly non-government related website. Unsuspecting students could do this search, click the link, and find themselves violated by the images that shock them a moment later. Teachers can be accused of illicit use of porn in the classroom and the accusations can continue to thrive into insidious realms no one ever suspected was possible.

The monitoring of school internet use is problematic because they also do everything, they can limit what the students have access to in order to prevent such exposure. As a result, there are many educational resources no longer accessible by such restrictions. Simultaneously, the use of internet searches can not only harm teachers but also employees. Many employees do searches for their work. This is primarily not an issue, but occasional mis-typings or links that were mislabeled can occur and the subsequent flagging of the employee’s computer becomes problematic for the employee’s potential for remaining employed. Extensive background checks also become problematic.

If one has been flagged for inappropriate use of the internet (child pornography) or other situations, there are now extensive background checks that include the behavior of family members or close associations that can now prevent a person from obtaining gainful employment. So, what this means, is that even though it is blatantly illegal to use the transgressions of another person, however related, as grounds for termination or prevention of employment, it is now encouraged and sold as an asset to employers. This means that regular citizens are beginning to use these violations of human rights as money-making ventures (the companies that do such background checks) and encouragement of further Fourth Amendment rights by regular citizens for situations essential to human survival. Without a means to obtain gainful employment, this leaves citizens at risk of criminal activity and increased use of social services that will find their efforts to wean the participant off services in vain with such background surveillance being used to prevent successful employment.

What is most interesting with the Google situation is that Google has no issue whatsoever of protecting corporations from defamation and illegal use of their domains as seen by their transparency report (Google, 2014). Protections of corporations over citizens seems to be the larger variation of what should be considered here as opposed to merely government spying on its citizens. It seems that all the efforts are in support of creating jobs, using the fears of citizens to inspire the purchase of products and surrender of rights, and then the subsequent protection of corporations from such violations. This is even more apparent when considering that many of these large corporations eagerly hand over their own customer’s records without much argument. At this juncture, they realize that their customers will be subjected to these violations regardless of which company they choose, so customer loyalty isn’t even a consideration. That is the primary driving force behind corporate protection of consumer data. Without this, there is no incentive to protect and their allegiance will remain with the support that renders their business more successful in the long-term. Their own access to more affiliations that increase revenue is much more interesting to shareholders than consumer protection.

Therefore, the citizens are only reliant upon consumer protection agencies, human rights watchdog organizations and other such humanitarian legal protection organizations that exist solely for the protection of citizen rights. The entire (centric) purpose of America theoretically is about freedom, but with capitalism as its core, the freedom to capitalize and increase revenue usurps any individual human right to personhood and privacy.

Although much can be said in support of such violations. Clearly, there are potentials for terrorist acts to take place without such invasive searches. There are records of women and children being used as weapons, so the respect of their physical being is something that becomes problematic for those who are experienced with discovering such cases and realizing the dire need for stricter policies. However, the fact that these policies are not enforceable globally and the lack of enforcement in other countries still impacting American citizens remains a challenge that no security agency in America can address. The attempts to create fear in these other countries to encourage such policies have been forthcoming and utilized. Many are beginning to toughen up their securities and policies regarding travel. Some countries are so over-restrictive over their citizenry’s use of the internet that the citizens are completely unaware of much of the information that is available on the internet. China is a great example of this. In the effort to control the access to information, the Chinese government has set extremely restrictive policies on internet access rather than spying on associations and setting up sting operations as is done in America. To compare China to the efforts in American schools, limiting access to information to protect the citizens, is something that many Americans would be appalled to consider. However, it is very similar and is something to consider as we dredge forward into the technological age and the age where terrorism appears to be becoming more and more advanced.

Can our security efforts really usurp threats to human protection and rights? Do we have to violate ourselves in order to protect ourselves? Isn’t that a complete contradiction? How far are we willing to go in self-violation for physical protection? When does the line become so blurred that we can’t acknowledge our own protection is a blatant violation? Is there really any possible way to truly ensure safety and security? These are all questions that remain unanswered by all the efforts to improve and increase security to the tune of civil rights violations that our founding fathers would be appalled and perhaps unable to answer. Is it possible that our founding fathers’ rights were too impossible to implement with such a dramatic shift in human knowledge and resources?

In conclusion, our founding fathers lived in a time when the threats were very real but much more tangible and controllable than they are today. With the technological advances, increased education in chemistry and espionage, and transportation and communication resources unfathomable to them in their time, it is possible that dire questioning of the Bill of Rights will come to pass. It already appears to be under fire. There are many organizations and citizens groups who are protesting the blatant violation of their rights and have very concrete evidence of their claims. Simultaneously we have courts that are not upholding citizens’ rights in the name of sovereign immunity, which also brings to question the deeper needs of citizenry perhaps not always apparent to the citizens or that corporate interests are likely as important to citizens, but they are unaware of the impact their protest would have on their economic realities.

It is very clear that the situation is much more complex than any reports that are currently addressing all these factors. Human rights should always be a first and foremost concern. Is it really in our best interest to hand over our rights to citizen protection and corporate success? Until citizens are more capable of protecting themselves and continue to rely upon the government to take care of them, I suppose it is possible that this really is the only solution. It is quite a distasteful one, but the alternative does not appear to be readily available. It would behoove the American population to take more actionable efforts to rectify their own safety concerns with local efforts to protect than to assume that unilateral government protection is the only real option.

We are living in a global economy and a global communication world. This is not the world of our founding fathers, and as such, we need to be much more accountable for our own contribution to the world we wish to inhabit. It is all too easy to blame a government that we elected without taking actual responsibility for our own apathy in solving these problems.

References

American Civil Liberties Union (2014). ACLU Appeals Dismissal of Lawsuit Challenging NSA Call-Tracking Program. Retrieved from https://www.aclu.org/national-security/aclu-appeals-dismissal-lawsuit-challenging-nsa-call-tracking-program

Electronic Frontier Foundation (2014). Jewel vs NSA Court Complaint Record. Retrieved from https://www.eff.org/files/filenode/jewel/jewel.complaint.pdf

Electronic Frontier Foundation. (2014). NSA Spying on Americans. Retrieved from https://www.eff.org/nsa-spying/faq

Electronic Frontier Foundation (2014). Order on Motions of Summary Judgement. Retrieved from https://www.eff.org/node/74895

Google (2014). Transparency Report. Retrieved from http://www.google.com/transparencyreport/removals/government/

Greenberg, A. (2011). Google Hands Over User Data For 94% of Law Enforcement Requests. Forbes. Retrieved from http://www.forbes.com/sites/andygreenberg/2011/06/27/google-hands-over-user-data-for-94-of-law-enforcement-requests/

Grubell, M. (2012). The Inactivation of the Body Scanners. Probpublica.org. Retrieved from http://www.propublica.org/article/the-inactivation-of-the-body-scanners

Liebelson, D. (2013). TS is Making Airport Valets Search Your Trunk. Mother Jones. Retrieved from http://www.motherjones.com/politics/2013/07/tsa-car-searches-airport-fourth-amendment

The Charters of Freedom (1789). Bill of Rights. Retrieved from http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html

The Inter-American Commission on Human Rights (2014) Report on Citizen Security and Human Rights. Retrieved from http://www.cidh.oas.org/countryrep/Seguridad.eng/CitizenSecurity.IV.htm

United States Courts (2014). Case Summary: Jewel vs. NSA 08-cv-04373 (N.D. California) Retrieved from http://www.uscourts.gov/Multimedia/Cameras/NorthernDistrictofCalifornia/08-cv-04373.aspx