NSA, Edward Snowden And The 4th Amendment.

On June 17, 2013, Bill Timberman, Mike Cosentino and Steve Williamson of Democratic Perspective examined implications of Edward Snowden’s revelations about the National Security Agency. At issue is whether or not the NSA’s surveillance program is unreasonable as defined by the 4th Amendment to the Constitution.

As Bill said, “Unreasonable is the key word.”

The following is based on a document Bill prepared for the show. Hopefully, it will help you decide whether or not the NSA program meets that definition.

Snowden’s initial revelation was that of a NSA program than collects and stores data from all telephone and Internet sources, including data from American citizens. His claim led the government to acknowledge existence of the program, noting that it had been authorized by the FISA (Foreign Intelligence and Surveillance Act) Court.

More recently, Snowden claimed that, while working as an analyst for Booz Allen Hamilton, a private company under contract to the NSA, he had access to communications from any individual in the U.S. NSA Director, General Keith Alexander, denied that claim. However, in a secret congressional briefing, the NSA has admitted that analysts like Snowden do indeed have the authority to listen to the content of phone calls, and to read the content of e-mail and chat messages.

Of course, all of this has angered civil liberties advocates, who believe the program is a violation of the Fourth Amendment; that such surveillance was explicitly forbidden by the FISA of 1978 and remains illegal even under the 2007 FISA amendments, which were extended indefinitely in 2008.

So what do we really know about the NSA program?

For starters, we know that the attacks on 9/11 did, indeed, change everything. When 19 men armed with box cutters brought down the World Trade Center towers, attacked the Pentagon, and killed almost 3000 people, we learned that enemies with no conventional military capabilities can leverage our own technologies against us. Unlike conventional enemies of past wars, these enemies can actually be hidden inside the US or allied countries, with no easy way to identify them. They don’t wear uniforms, they don’t stay in one place, and they’re difficult to distinguish from ordinary citizens.

The government’s solution to identifying terrorists before they can attack us is to use advanced computer technologies to collect and analyze essentially all telecommunications in the US and the rest of the world.

The first attempt was the Total Information Awareness program, set up by Admiral John Poindexter in 2003. Although TIA was defunded by Congress in 2004, it has served as a model for the development and deployment of similar surveillance programs by the NSA, CIA, and the Defense Intelligence Agency.

The current NSA program diverts all Internet backbone traffic passing through the US and stores it, along with communications from satellites and other sources, on its own servers. It then uses sophisticated computer software (PRISM) to analyze the stored contents for signs of communications between potential terrorists.

Although the government states that “no one is listening to your phone calls,” the Metadata it collects includes all of the information about a telecommunications message other than its actual content: Who sent it, who received it, where they were located, when it was sent, how long it was, and so forth. Of course, with technology, this provides a great deal of information about you.

For example: Suppose a woman calls her doctor for an appointment. A day later, she makes an appointment with a medical testing laboratory. A week later she calls an oncology specialist for an appointment. Several days after that, she consecutively calls her parents, her grown children, her ex-husband, a number of presumed friends and relatives, people she’s called regularly in the past, and then finally the family’s financial advisor, lawyer, and a hospice service.

Even without actually listening to the content of her calls, it wouldn’t be that hard to figure out that she might have been diagnosed with terminal cancer.

Alarming as that may be to civil libertarians, a much larger issue is the potential misuse of the NSA’s data collection and analysis programs to marginalize, demonize, or even criminalize legitimate political opponents of the government.

There is certainly ample historical precedent for this sort of abuse. Some may remember McCarthyism of the fifties, or Nixon’s enemies list. With miodern technology, Nixon wouldn’t need his “plumbers” to raid the Democratic offices to learn of their strategies. Theoretically, he’d just have to call the NSA director. Of course, there’s no widespread or conclusive evidence of such abuses today, but there are some disturbing signs.

An antiwar nun was put on the no-fly list, a US documentary filmmaker had her laptop and cellphone seized, and was detained “upwards of 40 times” as she traveled in and out of the United States. There is also evidence that people planning peaceful demonstrations at the Republican convention of 2008 in St. Paul, Minnesota were identified and located from their Internet communications, rounded up and put in preventive detention as potential terrorists 24 hours before the convention began.

So is Snowden a hero, or a traitor?

Probably neither, but history will ultimately be the judge. Whichever is the case, he has generated a public debate about surveillance programs that is long overdue.

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