Surveillance State? Federal Ruling Goes into Overtime

 

 

It’s been about eight months since Glenn Greenwald and collaborators began reporting on Edward Snowden and the National Security Agency surveillance leaks; and they’ve been rolling in steadily ever since. While intelligence gathering is certainly not a new or entirely unnecessary tactic, documents pointing to the magnitude, and arbitrary nature of oversight have cast the agency and its work in an Orwellian light. Undoubtedly, there has to be a trade-off at some point. Some secrets probably should remain secret; but where do we draw the line between security, privacy and moreover, our own personal freedoms?

Whether you believe Edward Snowden has been doing our civil liberties a favor or not, there’s also a line-up of ex-NSA officials, whistleblowers, and senators who have been trying for years to shine some light on the issue. Service providers such as Ladar Levison of Lavabit, have also come forward to shed some light on the story; having decided to shut-down the website rather than hand over the reins to surveillance agencies, though also clarifying that under legal restrictions, he was unable to disclose much of his interaction with the agency, stating instead that he “did not want to be complicit in crimes against the American people”.

We know now, through leaks such as the Verizon court order, that the NSA has been collecting phone records on most American’s on a daily basis through various phone and communications companies.

Slides have shown a timeline of Web and Tech giants who have provided, either willingly with the possibility of facing similar constraints as Levison; or perhaps unwillingly- as some of the slides suggest direct access could be reached unbeknownst through the Tempura program’s fiber optic cable taps. We’ve seen the expanse of networks reaching international agencies like the Five-Eyes surveillance alliance of the U.S’s NSA, UK’s GCHQ, Canadian CSEC/CSIS, as well as facilities in Australia and New Zealand.

The official responses echoed in the media have certainly shifted as revelations continued to roll out. Presidential addresses and hearings with agency officials when the leaks started were flat-out rejections of PRISM or meta-data programs even existing, as more information is made available, the stance has visibly softened and we are now witnessing calls for reform, and an acceptance of public debate. Of course debates only happening after the fact, are part of the problem. The NSA’s surveillance program is still defended by many, but there is clearly a significant call, and a begrudging admittance, for proper checks and balances on a very vast and capable agency.  President Obama’s review group on Intelligence and Communications Technologies has recently released a 304 page report for the Presidents consideration, including their recommendations for surveillance reform- all 46 of them. While the report is still certainly in favor of maintaining the program, Senator Ron Wyden stated on his website that “I’ve been arguing for two years that the programs’ effectiveness has been overstated. The panel of surveillance experts came to the same conclusion”.

The effectiveness or apparent need for the program has been one of the agency’s most adamant claims. NSA Director, Keith Alexander, stated in slides leaked from a Las Vegas presentation, that the program claimed to have prevented 54 terrorist attacks (25 in Europe, 13 in the U.S., 11 in Asia, and 5 in Africa). However, amongst the crowd that would disagree with this claim, is U.S. District Judge Richard Leon of Washington, A Bush-Republican appointee, who ruled against that claim, and against the likely constitutionality of the program stating:

“Although the government has publically asserted that the NSA’s surveillance programs have prevented fifty-four terrorist attacks, no proof of that has been put before me”

To couple this ruling with the report from Obama’s surveillance reform report, seems like an obvious vindication of Snowden’s message, although many would still disagree. Within ten days of Judge Leon’s ruling we have District Judge William Pauley of New York, who ultimately ruled in the complete opposite direction on every fundamental aspect of the case. To the role of surveillance in the prevention of terrorism, or more specifically, in his description- the September 11th attacks, Judge Pauley stated:

“Telephone metadata would have furnished the missing information and might have permitted the NSA to notify the federal bureau of investigation of the fact that Al Midhar was calling the Yemeni safe house from inside the United States.”

While the program still retains some value, and obviously with the proper checks and balances in place, could this not be one of the situations with probable cause and reasonable suspicion to issue a warrant for this specific data? This has been a key dynamic to the debate of just how the program should be amended. If the split decision holds on through the appeals process, ultimately, it could become the decision of the Supreme Court. Obama, as well, has 46 suggestions as to how things can be improved; of which –or any- he chooses to enact, is something that remains to be seen.

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