In the 12 years since the terrorist attacks on the World Trade Center, the U.S. Constitution has not changed.
But now, the liberties the government has been taking to protect the United States are being challenged in the name of the Constitution.
The full extent of the NSA surveillance program is not publicly known. The recent whistleblowing scandal has revealed some of the forms of communication the government has been collecting data from. Here are some of the mediums the government has access to in order to locate and intercept possible terrorist threats.
- The NSA cannot listen to the content of phone calls, but can collect data on phone records such as recipient, duration and location of the phone call.
- Like with telephones, the NSA can access information including recipients, sender and subject, but cannot read the contents of the emails.
- Companies like Google and Yahoo have asked to disclose to the public when the NSA asks for records. They have been barred from doing so at this time.
- It is not known what further access to communications the NSA will have. President Barack Obama has met with companies like Apple to discuss this issue.
An ongoing scandal about the National Security Agency’s collection of phone and email data under sections of the Patriot Act has attracted criticism about infringement of data collection on Fourth and First Amendment rights.
“Something like 9/11 happens, and certainly the NSA or another government organization could see the justification for growing their surveillance programs in the interest of national security,” said Liz Woolery, a UNC Ph.D. student who specializes in legal and regulatory issues in media.
Woolery said even though Americans communicate with each other millions of times a day, none of it is constitutionally protected.
“There’s no right to privacy, there’s no amendment or anything like that, and we know that in order to achieve the goals the First Amendment has set out like freedom of the press, freedom of speech, freedom of assembly, then we need to know that certain communications are going to be privileged,” she said.
But the NSA is collecting data on millions of Americans via telephones, said Sarah Preston, policy director for the American Civil Liberties Union of North Carolina.
“That information is enough to reveal a lot of very personal information, like what doctor you’re seeing, what religion you subscribe to or none at all, whether you’re calling your lawyer, a support group for alcoholics or a suicide hotline,” she said.
She said there’s an unprecedented breadth of knowledge the government can build on an individual based on whom that person contacts.
“This is information that I think most Americans consider to be private, that they don’t want the government to be tracking and saving indefinitely,” Preston said. “The fear essentially is that the NSA is able to track all of this information and other information about where people are going, who they’re calling, and you could put all of this information together and the government would be able to keep tabs on (its) citizens at all times.”
And Natasha Duarte, a UNC research student focusing on government surveillance and the First Amendment, said the government claims it is not listening to citizens’ phone calls and defends its monitoring as being content-neutral.
“One of the concerns with that — if they know who you call and for how long, that can tell you a lot about a person,” she said.
In June, the national ACLU filed a lawsuit against the NSA’s surveillance tactics under Section 215 of the Patriot Act.
Section 215 allows the government to order individuals or companies to turn over any information the FBI says pertains to a terrorist investigation without showing probable cause. The orders are issued by the Foreign Intelligence Surveillance Court.
Woolery said the NSA hopes to identify terrorist threats by looking for patterns in communications.
“Then maybe they can use that information to foil a plot in the near future,” she said. “I think the idea is basically that the more information the NSA has, the better chances they have of ensuring national security.”
In the summer, Edward Snowden, a former employee of NSA defense contractor Booz Allen Hamilton, leaked documents and intelligence about the NSA surveillance practices.
“The government has acknowledged since the Snowden leak that it is using the section to collect metadata about every phone call made or received at a residence in the United States,” Preston said.
“We are challenging that as a violation of the Fourth Amendment.”
The Fourth Amendment guarantees that citizens have a right to be protected from unreasonable searches and seizures without a warrant.
Preston said the lawsuit came after the ACLU learned Verizon was ordered by the U.S. Foreign Intelligence Surveillance Court to turn over phone records for all users for a three-month period. The national ACLU is a Verizon customer.
“They believe that there’s a violation of their employees’ privacy, of their customers’ privacy and (the privacy) of anyone else calling us to get information,” she said.
Duarte said some are concerned about the amount of information the NSA has been collecting.
“The problem is when the NSA collects data from Verizon customers, they collect all of it before they have any information about whether this person has done anything wrong or not,” she said.
“Instead of showing they have a reason that someone has done something wrong, they are mass-collecting the data.”
Duarte said the impacts of mass collection could impact communications and the choices about what groups to associate with.
Woolery said if privacy is threatened, there could be a chilling effect on what people choose to communicate and could compromise their First Amendment rights.
“The concern in this case is that if you are worried that someone, in this case the government, (is) reading your emails, then you’ll be more likely to censor yourself,” she said.
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