Pacific Northwest State
The Intelligencer
Edition #3: Online Debate
THE NSA’S ACTIONS? Resolved, the NSA’s actions are unconstitutional.
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Pacific Northwest State
The Intelligencer
Edition #3: Online Debate
Online Debate Resolved, the NSA’s actions are unconstitutional. Pro: Rueben White
Con: Toby Calvert-Lee
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Background The National Security Agency (NSA) was formed on November 4, 1952 and tasked with generating signals intelligence (SIGINT) for the U.S. government. Garnering signals intelligence involves intercepting the signals involved in communication between two parties (COMINT), or electronic signals (ELINT), through cryptanalysis (decrypting encrypted information) and traffic analysis. The NSA's activities serve intelligence and counterintelligence purposes, and include bugging, using so-called "subversive software," and, most problematically, collecting and storing the phone records of all American citizens. This program of mass surveillance was revealed by a cache of secret documents leaked by former NSA contractor Edward Snowden (now charged with espionage and theft of government property). According to Peter Singer, Snowden's disclosure exposed three types of spying: "useful espionage versus American enemies, legally questionable activities that involved US citizens, [and] un-strategic actions targeting American allies." Does the United States government's current interpretation of the Patriot Act (created in the wake of 9/11 to protect American citizens from further terrorist attacks) and the NSA's mandate unconstitutionally violate its citizens privacy, or are the NSA's activities necessitated by the increasingly sophisticated "weaponry" of terrorists and the global prevalence of metadata?
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Pacific Northwest State
The Intelligencer
Edition #3: Online Debate
PRO: Reuben White Executive Order 12333 signed into law on December 4, 1981 by Ronald Reagan, greatly expanded the power of US Intelligence Agency and outlined the mission of the National Security Agency. The NSA’s mission as described is, “To provide the President and the National Security Council with the necessary information on which to base decisions concerning the conduct and development of foreign, defense and economic policy, and the protection of United States national interests from foreign security threats.” while never “acquiring information concerning the domestic activities of United States persons”. On June 6th last year, thanks to a leak by a whistleblower named Edward Snowden we learned the NSA’s idea of upholding this provision, is to track two trillion phone calls of ordinary citizens annually. As the news first broke the President Obama reassured the public that, “Nobody is listening to your telephone calls. That's not what this program's about. They are not looking at people's names, and they're not looking at content.”. Further press releases revealed that the president had been partially correct -the NSA wasn’t just about collecting phonecalls, it was about collecting everything. What began to emerge was an almost Orwellian state of domestic surveillance organized into three highly classified branches.
The first branch collects and stores terabytes of data from millions of Verizon, AT&T, and Sprint customers, in what, “is the largest database ever assembled in the world,",according to one NSA associate familiar with the matter This data can be used to eavesdrop and even track the location of citizens. The second branch, nicknamed PRISM, hacks into the database of twelve major internet companies including Google, Yahoo, Facebook, and Apple. PRISM enables the government to track search habits, access private emails and files, and even create intricate graphs of citizens private social connections. The third branch catalogues private credit card transactions and spending habits .
These programs were kept extremely confidential, even members of congress were unable to learn even basic information about the program. Despite president Obama’s claims that,”These programs are subject to congressional oversight and congressional reauthorization and congressional debate," members of congress like Sen. Richard Blumenthal (D-Ct) have complained, “The revelations about the magnitude, the scope and scale of these surveillances, the metadata and the invasive actions surveillance of social media Web sites were indeed revelations to me”.
Since the new information came to light many have suggested that in addition to going beyond the scope of the NSA’s mission, the NSA activities have breached citizens Fourth Amendment Right. Which states that, “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”. No warrants were issued by the NSA when they seized terabytes of private emails, phone calls, and files. Unless you are going to claim that the majority of US citizens are potential terrorist then no probable cause exists for this kind of data collection. Finally the kind of mass data collection the NSA employs completely disregards the Fourth Amendment's provision that warrants must, “particularly Junior State of America
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Pacific Northwest State
The Intelligencer
Edition #3: Online Debate
describ[e] the place to be searched, and the persons or things to be seized”. While I believe in a living constitution, this kind of constitutional life is a little too vivid for me. The NSA’s activities are a clear violation of not only its own mission statement, outlined in Executive Order 12333, but they are also unconstitutional in violation of the Fourth Amendment.
Proponents of the NSA have argued that this kind of data collection is legal and constitutional because it doesn’t collect data but metadata a term almost as vague as the NSA’s constitutionality. Metadata as defined by the Merriam-Webster dictionary is,”data that provides information about other data”. Metadata can include: purpose of the data, means of data creation, time of data creation, location of data creation, and use of data. The problem is that metadata is still data; data that can be abused to, “acquir[e] information concerning the domestic activities of United States persons” as strictly prohibited in the NSA’s mission; data that was collected without warrant or probable cause as prohibited in Fourth Amendment. Advocates of the NSA have also argued that the mass data collection doesn’t violate the Fourth Amendment because the data is encrypted and isn’t accessed until a warrant is issued. The NSA’s encryption methods are questionable at best, Edward Snowden, the whistleblower who first incriminated the NSA, has claimed that the NSA often avoids encryption by lifting data before its been encrypted (propublica). Furthermore the very collection of data is a violation of the Fourth Amendment because the Fourth Amendment protects the, “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizure”. The NSA has abused its power and violated the Fourth Amendment, but that doesn’t mean the program is inherently bad, as advocates for the NSA are so quick to point out, “the NSA stops terrorism”. Just how many terrorist has the NSA stopped? According to Geoffrey Stone, a University of Chicago law professor, and member of White Houses Review panel on NSA surveillance, “[They] found none”.
On June 7th 2012, the day after the NSA’s incriminating leak, President Obama acknowledged, “one of the things that we’re going to have to discuss and debate is how are we striking this balance between the need to keep the American people safe and our concerns about privacy, because there are some trade-offs involved.”. What is the extent of these trade-offs the president referred to? Is an illegal and unconstitutional secret program that spies on millions of ordinary citizens albeit for their own safety, despite never catching a single terrorist, really worth it? Two and a half centuries earlier another politician said something about the trade-off between liberty and safety, his name was Benjamin Franklin, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety” . I urge you to remember Franklin’s words and stand opposed to the NSA’s illegal and unconstitutional violations of our basic liberties.
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Pacific Northwest State
The Intelligencer
Edition #3: Online Debate
CON: Toby Calvert-Lee In early 2013, a government contractor shocked absolutely no one by leaking information proving that the National Security Agency (NSA) had been snooping around in the emails of innocents and terrorists alike. This government contractor had been granted access to state secrets far above his level of clearance and given an outsize role in America’s covert War on Terror despite his youth and lack of basic necessities such as experience or even a high school diploma. Only in America could people be genuinely upset when an inexperienced hack, who had been given access to information way above his pay grade, tells them that the government had been doing something that we pretty much suspected they have been doing all along. Yet we still must go through the motions of our faux outrage, as many cry ‘fascism’ and ‘tyranny’ in response to our governments attempt to protect us. This anger always seems to be couched in the language of our Constitution, and that is an argument which I feel that our founding fathers may just take umbrage to.
It is always funny when this argument is trotted out, primarily because the courts have ruled on it so many times. So while the ACLU is out there sniping about civil liberties and whining about their misinterpretation of the fourth amendment, let’s take a look at the case history of the NSA and warrantless searching in times of war. Let’s not forget that that’s what this is: war time. We are engaged in a long and protracted war with an elusive enemy, and in order to win we need to pull out all the stops. In times of war, our land’s highest court has ruled, the fourth amendment allows warrantless searches to exist when 'special needs, beyond the normal need for law enforcement exist’ (Henderson V. City of Simi Valley). When hunting for purveyors of evil who live in the shadows, I think we can safely say that ‘special needs exist’. And if this just isn’t enough to sell you on the clear constitutionality of the NSA’s action, you must remember the Court’s ‘reasonableness’ test with regards to warrants. The Court has, dating back from the time of the Keith case of 1972, allowed the U.S. Government to act without warrants when it is ‘reasonable’; essentially, when it would damage the interests of the United States if they are held to the warrant requirement. Again, I think it ought to be relatively clear that it is ‘reasonable’, by this definition, to do a little ‘snooping’ in search of terrorists.
We are all going to be hearing a lot more noise about the NSA. But while pundits on the left and right stomp their feet and blow steam out their ears, it is important to remember that the case history above is but the tip of the iceberg. Cases like this have been brought before the court hundreds of times, and the court so often rules in favor of warrantless searches such as these for a reason; they are necessary to protect lives. Yes, we can argue about the incompetence that led to this being leaked. Yes, we can even argue about whether or not they could be set up better. But no, we cannot argue about the constitutionality of the program; this is has been settled time and time again.
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Pacific Northwest State
The Intelligencer
Edition #3: Online Debate
Works Cited 1. http://www.archives.gov/federal-register/codification/executive-order/12333.html
2. http://www.washingtonpost.com/world/national-security/nsa-tracking-cellphone-locations-worldwidesnowden-documents-show/2013/12/04/5492873a-5cf2-11e3-bc56-c6ca94801fac_story.html?hpid=z1
3. http://www.pbs.org/newshour/bb/government_programs/jan-june13/surveillance1_06-07.html
4. http://usatoday30.usatoday.com/news/washington/2006-05-10-nsa_x.htm
5. http://www.nytimes.com/2013/09/29/us/nsa-examines-social-networks-of-us-citizens.html?_r=0
6. http://www.theguardian.com/world/interactive/2013/aug/04/documents-information-griďŹƒth-letters
7. http://www.theguardian.com/commentisfree/2013/aug/04/congress-nsa-denied-access
8. http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html
9. http://investigations.nbcnews.com/_news/2013/12/20/21975158-nsa-program-stopped-no-terror-attackssays-white-house-panel-member?lite
10. http://blogs.wsj.com/washwire/2013/06/07/transcript-what-obama-said-on-nsa-controversy/
11. http://franklinpapers.org/franklin/framedVolumes.jsp?vol=6&page=238a
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Credits Written by Uma Ilavarasan (Background), Reuben White (Pro), and Toby Calvert-Lee (Con)
Formatted and Compiled by Hari Mahesh
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