Surveillance State? Federal Ruling Goes into Overtime

Backbencher January 11, 2014 1
Surveillance State? Federal Ruling Goes into Overtime

It has been roughly eight months since Glenn Greenwald et al. began reporting on Edward Snowden and the National Security Agency surveillance leaks. The leaks have been rolling in ever since. While intelligence gathering is certainly not a new or entirely unnecessary tactic, documents pointing to the magnitude and arbitrary nature of oversight have cast the NSA in an Orwellian light.

Undoubtedly, there has to be a trade-off at some point. Some secrets do, in fact, need to remain secret. So where do we draw the line between security, privacy and, moreover, our own personal freedoms? Private records, analysed and interpreted in secret courts, are in no way signs of a free and healthy democracy. And isn’t the state of democracy what this debate is really about?

Whether you believe Edward Snowden has been doing our civil liberties a favour or not, there has been a stream of ex-NSA officials, whistleblowers, and senators who have been trying to shine light on the issue for years.

Service providers, such as Ladar Levison of Lavabit, have also come forward to shed some light on the story; having decided to shut-down the website rather than hand over the reins to surveillance agencies, also clarifying that under legal restrictions, he was unable to disclose much of his interaction with the agency, stating that he “did not want to be complicit in crimes against the American people”.

We now know, through leaks such as the Verizon court order, that the NSA has been collecting phone records on Americans on a daily basis through various telecom and communications companies.

Slides have shown a timeline of Web and Tech giants who have provided, either willingly with the possibility of facing similar constraints as Levison; or perhaps unwillingly – as some of the slides suggest direct access could be reached through the Tempura program’s fiber optic cable taps. We have seen the expanse of networks reaching international agencies like the so-called ‘Five Eyes’ surveillance alliance of the NSA, GCHQ, Canada’s CSEC/CSIS, as well as facilities in Australia and New Zealand.

The official responses echoed in the media have shifted as revelations continued to emerge. Initially, Presidential addresses and hearings with agency officials were flat rejections of PRISM or meta-data programs even existing. Yet, as more information becomes available, this stance has visibly softened. We are now witnessing calls for reform, and an acceptance that the public must become part of the debate.

Naturally, the fact that these debates are only happening now, after the event, is part of the problem. The NSA’s surveillance program is still defended by many, but there is clearly a significant call now for proper checks and balances on a very vast and capable agency.

ObamaThe President’s review group on Intelligence and Communications Technologies recently released a 304 page report for Obama’s consideration. The report includes 46 recommendations for surveillance reform. While the report is still certainly in favour of maintaining the program, Senator Ron Wyden stated on his website that, “I’ve been arguing for two years that the programs’ effectiveness has been overstated. The panel of surveillance experts came to the same conclusion”.

The NSA has remained steadfast in its argument that program remains effective and crucial for national security. NSA Director, Keith Alexander, stated in slides leaked from a Las Vegas presentation, that the program claimed to have prevented 54 terrorist attacks (25 in Europe, 13 in the U.S., 11 in Asia, and 5 in Africa).

One who disagrees with the program’s necessity is U.S. District Judge Richard Leon of Washington, a Bush-Republican appointee. On December 16, 2013, Judge Leon ruled that the program is most likely unconstitutional: “Although the government has publically asserted that the NSA’s surveillance program has prevented fifty-four terrorist attacks, no proof of that has been put before me”. Leon also stated, “I cannot imagine a more indiscriminate and arbitrary invasion than this systematic and high-tech collection and retention of personal data on virtually every citizen”.

Coupling this ruling with the report from Obama’s surveillance reform report, it seems that Snowden’s message is being vindicated (although many would naturally disagree). Within ten days of Judge Leon’s ruling, District Judge William Pauley of New York ruled in the opposite direction on every fundamental aspect of the case. To the role of surveillance in the prevention of terrorism, or more specifically, in his description – the September 11th attacks, Judge Pauley stated: “Telephone metadata would have furnished the missing information and might have permitted the NSA to notify the federal bureau of investigation of the fact that Al Midhar was calling the Yemeni safe house from inside the United States.”

With the proper checks and balances in place, the NSA’s program does retain some value. However, could this not be one of the situations with probable cause and reasonable suspicion to issue a warrant for this specific data? This has been a key dynamic to the debate of just how the program should be amended. If the split decision holds on through the appeals process, it could fall to the Supreme Court to make a final ruling.

Obama, as well, has 46 suggestions as to how things can be improved. Which ones, if any, he chooses to enact remains to be seen.

Jessie Taylor

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