On March 28, the U.S. Director of National Intelligence (DNI) sent a letter to Sen. Ron Wyden (D-OR) in which he confirmed what people had long suspected: that indeed the National Security Agency (NSA) had conducted what amounted to warrantless searches on U.S. citizens. The searches were conducted in the process of the operation of the NSA program targeting communications by foreigners outside of the United States. The Director of National Intelligence James Clapper stated that this surveillance had been authorized in 2011 by a secret court; however the government had not confirmed that this involved surveillance of Americans until now.
In the letter, Clapper said the NSA had collected information on Americans after targeting foreign nationals and that an internal review of this surveillance they concluded there was no impropriety. Last year’s revelations by former NSA systems analyst Edward Snowden that the government had collected large quantities of data with the assistance of technology companies caused outrage among many Americans. Snowden claimed the government collected data through Internet companies that included Google, Apple, Microsoft and Facebook using a program designed to target communications of foreigners outside the U.S. However, if a communication of an American was collected the government was under direction to keep those communications private. In a joint statement, Sens. Ron Wyden (D-OR) and Mark Udall (D-CO) responded to the letter stating that “Senior officials have sometimes suggested that government agencies do not deliberately read Americans’ emails, monitor their online activity or listen to their phone calls without a warrant. However, the facts show that those suggestions were misleading, and that intelligence agencies have indeed conducted warrantless searches for Americans’ communications.”
In the aftermath of the terrorist attacks on September 11, 2001 there have been large and sweeping changes to our national security laws. The Obama administration contends that these laws allow the government to collect and analyze the communications of all Americans, because in 2011, the administration obtained approval from the Foreign Intelligence Surveillance (FISA) Court to see if there were any Americans involved in any of the communications it had already collected to that date. This development was troubling to everyone concerned with balancing protecting the nation against future terrorist attacks and simultaneously safeguarding civil liberties. Critics contend that these searches are a violation of the 4th Amendment to the U.S. Constitution. It reads “[t]he 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.” It would seem that a reasonable compromise could be reached where if the government suspected wrongdoing by a citizen, it could petition the court for a warrant, present evidence, and if granted, compel these technology companies to turn over the data specifically asked for as required by the 4th Amendment.
The government would likely counter that argument suggesting that calls or internet use internationally by U.S. citizens is not protected because there is no reasonable expectation of privacy calling or emailing overseas. Essentially, the government might argue: when a citizen calls or emails to another country, the US Constitution cannot protect those communications, other countries could certainly attempt to monitor those communications, and a citizen doing so cannot expect that their communications are private. The terrible dilemma in this scenario is that citizens cannot determine the scope of such monitoring because everything that is done is done in secret. Even when the government initiates proceedings in Court, it utilizes the FISA court, which is secret. Hence, absent strong oversight and transparent disclosure of the nature of the monitoring systems to the public, which intelligence agencies don’t want to provide for fear of disclosing our “means and methods” to adversaries, citizens are left to “trust” their government. We submit this is a dubious scenario, according to the framers of the Constitution, with little accountability to the public.