U.S. Surveillance Programs: Is Spying on American Citizens Legal and Constitutional?


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President Obama has campaigned on 'Change' - but does the administration's policies regarding surveillance of Americans fit into that mantra? Photo Credit: Blake Coughenour

President Obama has campaigned on ‘Change’ – but does the administration’s policies regarding surveillance of Americans fit into that mantra? Photo Credit: Blake Coughenour

On August 9, 2013, President Barack Obama held a press conference; a rarity for him.

No doubt addressing the media directly was a result of criticism of the president for speaking to the American people for the first time about such important matters while appearing on television with comedian Jay Leno.

On August 9, Obama announced he was reviewing the surveillance programs conducted by the National Security Agency (NSA).

He said he had thought of reviewing these programs way before Edward Snowden became a household name by leaking not only classified material but the existence of the widespread practice of collecting metadata of American citizens – including telephone calls and Internet use.

NSA Spying Program: Information They Collect

The main criticism of the spying programs, after they were fully revealed by Snowden, is of the amount of data the government collects on American citizens who are not suspected of committing any crime or of having any terrorist involvement.

Large communication companies such as Verizon, AT&T and Sprint have been turning over all their records to the NSA for years. This constitutes billions of telephone calls made by Americans every day. The information the government receives is the telephone numbers of the parties to the call as well as the length of the individual communications.

In addition to telephone calls, large companies such as Google and Yahoo have been providing the NSA and law enforcement agencies with details of customers’ emails, social media use and instant messaging activity.

The NSA can look at this information legally as long as one of the parties is outside the United States. But, when it comes to the Internet, it is not always easy to determine exactly where the communication comes from. If the NSA determines the communication is wholly within the US, they can store that data for a few days before destroying it. If a person who is a party to the communication becomes a “target” of an investigation, the information is transferred to a permanent data base.

While all this information is collected by computer, there can be no real breach of privacy unless it is examined by a human being. Although the NSA must obtain warrants in some cases, it is not always necessary to obtain a warrant. The idea of unknown people combing through telephone and Internet records of ordinary people has raised serious concerns about right to privacy for American citizens.

Breach of Privacy for Law-Abiding American Citizens

Obama defended the collecting of metadata by saying that the NSA cannot listen to the telephone calls unless they obtain a warrant, but the NSA can obtain information about the parties to the call without listening to the call.

Telephone Records: Breach of Privacy

Take the situation of a husband and a wife. They live together and the government already knows this from information given to the IRS, the DMV, and other government agencies. It is true that if the metadata reveals they talk to each other on the phone every day, the NSA can obtain no information without listening to the actual call.  As long as no one listens to the call, the government will have no idea what the two people are talking about.

But non-routine calls made by people can reveal information just by virtue of the calls having been made. To take an innocuous example, suppose the phone records reveal that the husband made a brief call to a pizza restaurant that delivers. It is not illegal to order a pizza even in New York City. But is it the government’s business that someone in the home got hungry and ordered a pizza at 10:32 last night?

Here’s an example that illustrates a greater privacy breach. The wife gets a brief telephone call and shortly thereafter makes a longer call. The phone numbers reveal the call she received was from a gynecologist’s office and the one she made was to Planned Parenthood.

Without listening to the calls, the reasonable inference to be drawn from these exchanges is that she is pregnant and at least thinking of having an abortion. Like the pizza example, there is nothing illegal about this but her pregnancy and possible termination is none of the government’s business. But on a slow day, or if someone is curious, they can find out via the phone records, without ever listening to the telephone conversations.

Internet Usage: Breach of Privacy

Targeting a terror suspect by examining their Internet usage also has implications for innocent persons. People who use social media have friends and email users have contacts. These friends and contacts also have friends and contacts. A person can have a totally innocent relationship with a target of the investigation yet come under government scrutiny as a result of being on a friend’s or contact list. Contacts of contacts of someone under investigation can also be examined.

It is also possible that the NSA can examine cell phone records to determine the location of the caller, via geotracking. With access to all this data, the government could, like the IRS is accused of doing, single out groups like the Tea Party for scrutiny. Learning where a meeting has taken place, the government could find out who was in the area and who these people later talked to. While there is no evidence as to whether or not this is currently being done, the potential is there for abuse.

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