The NSA Data Gathering is the issue that creates both numerous possibilities for the safety protection and various implications in civil and legislative fields. Particularly, the necessity to protect the society by means of collecting data on citizens without the previous notification is opposed to the human right to privacy. Infinite investigations ended up in a disclosure of the NSA policy and implementation of the amendments to its practice. The thesis is that the current method of the public protection lacked the ethical justification and constitutional basis despite being efficient and thus its limitation and the implementation of the amendments has been justified. It would be proved through the observation of the NSA data gathering; its justification and implications; the process of disclosure and the consequences.
At first, the issue of the interest should be identified. It is the massive collection of the data performed by NSA without the proper previous notification, which caused an alarm among the common citizens and the political allies of the USA. The law conflict of the current issue is bound to the fact that the constitution forbids the untargeted surveillance or as it is also called the blanket surveillance. The ethical conflict of the issue is connected to the right to privacy that has been breached for the sake of the national security. In particular, it is not the fact of the data gathering that disturbed every involved party, but rather the fact that it has been conducted massively, without the prior negotiation and justification.
The history of the issue dates back to 1791 when the fourth amendment that guarantees the security from the unreasoned seizures has been implemented. NSA has been established in 1952, and in 1975 it has performed the first attempts to monitor the private life. Since then, both legal amendments towards the protection of rights performed by the government or private entities and legal efforts to provide the security executed by NSA developed symmetrically. The balance has been destroyed in 2001, when after the 9/11 President Bush has secretly signed an order that allowed NSA to perform the surveillance (“Timeline of NSA Domestic Spying”). As the time passed, the influence of NSA grew, various private and telecommunication companies were asked to cooperate. In 2005, New York Times made the issue public for the first time: NSA spied not only on the Islamic terrorists but on the American civilians as well. In 2013, NSA developed the PRISM, program that has been able to expand the company’s influence to the internet as well. NSA created the agreements with Germany and Australia, Latin American countries and Israel; monitored UN, Chinese internet, various personal and financial data. More importantly, this information has been stored and could be limitlessly applied.
The conflict began as the person responsible for the information leaks showed his face. It has been Edward Snowden, the former NSA worker. He declared that in the cooperation with Washington Post the nation’s privacy has been his top priority. Despite the witnessing of the NSA authorities that some of his statements seem untrustworthy, particularly his mentioned unfinished education would not allow him to apply to NSA, Snowden swiftly became a national hero (Gellman, Barton et al.). At the same time, his actions have put the reputation of the government, the secrecy of the counterterrorist organizations and the foreign policy of the USA under the risk. Allegedly, some secret data could have been intercepted by Russia and China during Snowden’s presence in those countries. A bulk piece of data has also presumably been entrusted to the news agencies in the case of his death (Thiessen, Marc). This precedent nearly served enough to have the NSA surveillance program finished; it survived only under the prevalence in 12 voices. The issue of the privacy has been overlooked including the possible credentials of the spies (Hayden, Michael V.). The trust of the people and political allies had to be regained. Nevertheless, the state still required the protection, and thus the program has been not shut but transformed.
The argumentation concerning the legality and morality of the issue is often addressed in the close connection to the Katz v. the United States and The Smith v. Maryland cases. According to Barnett, the expectation of the data privacy would be shaken in the case that the data can be gathered any time without the previous request and mutual consent (Barnett, Randy 4-5). Specifically, the Fourth Amendment created in order to prevent the British government from blanket searching presumes that the data request should be personal and not general (Barnett, Randy 5-6). During the case of Katz v. the United States, it has been concluded that the government should not wiretap the telephone booth calls due to the presumption of the privacy expectation (Barnett, Randy 7). The Smith v. Maryland, case presumes that the numbers and the duration of the phone calls are not subject to the privacy expectation as obviously available to the company. Yet, the content of the conversation should remain private (Barnett, Randy 7). Implementation of these cases in order to observe Data Gathering should be addressed with the consideration that firstly, the search should be applied for the particular person under the certain accusation, and secondly that the expectation of privacy should be presumed as granted.
The whole system of the surveillance had to be overlooked in order to find the balance between the safety and privacy. In 2014, under the order of President Obama, the massive NSA surveillance has been reconsidered. Under the new state of things, data had to stay under the control of the telephone stations and yet be available for extraction in the case of the immediate emergency. The orders regarding the information access would be granted by FISC and concern the personal numbers. Moreover, in 2015 the USA Freedom Act has been signed in order make amendments to the USA Patriot Act (Office of the Director of National Intelligence). Since November 29 of the same year, the changes were implemented. The data gathering would be now targeted and a number of such requests would be known to the congress and citizens.
The collection of the data has been ceased November 28, 2015. The collected data would remain under the oversight of NSA for the sake of its protection. NSA would not have an access to the data, except for the sake of testing of the new system. Under the Court’s order, NSA would destroy the data. Since the implementation of the amendment, the data gathering would be personalized. Moreover, the data would be held by the telecommunication companies and received only under the valid argumentation and with the approval of FISC or, in the case of emergency, of the organization equal to FISC. The data would include the technical information of the call, but not the content. The suspicious numbers would remain under the possibility of surveillance for 180 days. The purpose of the Freedom Act is to create the new legislation that would cover both the rights of the citizens and necessity of protection (“Fact Sheet: Implementation of the USA Freedom Act of 2015”). NSA would retain the possibility to monitor the phone calls, and yet the system would become more personal, specific and transparent.
Consequently, the implementation of the amendments, the disclosure of the surveillance and the consequent cancellation of the massive data gathering were natural. Despite the presumption about the program’s irreplaceability, its current state created the dangerous situation both inside and outside the country. The information leak created an awaited dialogue with the owners of the data thus making it possible for them to decide how much of the information should be available. The issue that people have the right to privacy, but also to protection as well made the government overlooks the current balance between the national safety and personal comfort. The interests of the citizens that now will know the amount of the disclosed data and have it on the adequate level are satisfied together with the governmental interests for safety. Thereby, the issue can be considered as the one that has been handled in an ethical way.
- Barnett, Randy. “Why The NSA Data Seizures Are Unconstitutional”. Harvard Journal of Law & Public Policy, vol 38, no. 1, pp. 4-7.
- “Fact Sheet: Implementation of The USA Freedom Act Of 2015”. Office of the Director of National Intelligence, 2015.
- Gellman, Barton et al. “Edward Snowden Comes Forward As Source Of NSA Leaks”. Washington Post, 2013.
- Hayden, Michael V. “Beyond Snowden: An NSA Reality Check”. World Affairs Journal, 2014.
- Office of the Director of National Intelligence. ODNI Announces Transition To New Telephone Metadata Program. 2015.
- Thiessen, Marc. “The Danger Of What Edward Snowden Has Not Revealed”. AEI, 2013.
- “Timeline Of NSA Domestic Spying”. Electronic Frontier Foundation.