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In June, the American Civil Liberties Union (ACLU) brought a case against James Clapper, the Director of National Intelligence, questioning the legality of the NSA’s programs to spy on the American people and collect and store bulk information for future use. ACLU v. Clapper was made possible after Edward Snowden blew the whistle on the NSA.
Before Snowden made the world privy to the NSA spying program and bulk collection of our metadata, it was impossible for anyone to successfully bring a case against the NSA. As far as the courts were concerned the spying program did not exist, and because it was classified its existence could not be proven without breaking the law. Only after Snowden blew the lid off the secrecy was it possible to point to the information collected by the government.
Recently, in a similar case to the one brought by the ACLU, a federal judge in Washington D.C. ruled that the NSA program was most likely unconstitutional, disregarded the fourth Amendment, and was “almost Orwellian” in nature. This along with a White House appointed panel which recommended sweeping changes to the program, including a ban on the direct collection of information by the NSA, sent a strong message that there would need to be some serious changes in the way the NSA collects and stores all of our information.
The finding in Washington D.C. has now been overshadowed by the most recent ruling, in which a federal court found the NSA bulk collection to be legal and is dismissing the case brought by the ACLU in New York. While the district judge who heard the New York case stated that he did not necessarily find the NSA program to be the best tool in fighting counter-terrorism, his ruling found the bulk collection of metadata to be lawful. Despite his ruling, the judge also stated that “this blunt tool only works because it collects everything” and that “such a program, if left unchecked, imperils the liberties of every citizen.” You can find the judge’s full statement here.
Along with these rulings and the promised appeal by the ACLU, the question still remains: is the bulk collection of all US citizens’ daily information violating the Fourth Amendment and our right to protection against unreasonable search and seizure?
What is most interesting about this question is how difficult it is to clearly answer. As shown in the NY judge’s own words, “it collects everything.” It’s difficult to understand how collecting all the hay is justified by the thought that perhaps one day a needle will fall into it, without disregarding the Fourth Amendment.
This environment is fear mongering. Real terrorists are very unlikely to discuss their plan by chatting about them on World of Warcraft, and if they have in the past, they certainly won’t now. In the most likely scenario, the only people who will get caught up in this dragnet approach are people whose pasts may come back to haunt them in the future by saying the wrong thing on Facebook or re-tweeting a tweet from a future terrorist. The true colors of this program will show that it is scaring citizens into being quiet about their negative views of the government, and perhaps the people who don’t mind the bulk collection because they believe they haven’t done anything wrong will feel “safer.”
While the ruling in the ACLU case has shown the darker side of the coin, the discussion, debate, and lawmaking is still far from over. The ACLU promises to appeal and there are more cases popping up all the time. With two federal judges coming to opposite conclusions yet sharing similar skepticism about the program, it is likely that the legality of the NSA’s all-encompassing program will reach the Supreme Court. But until that time, the program will likely stay in effect. Even the DC judge who fears the program is unconstitutional refused to put in an injunction, claiming that it may upset national security.
While the thought of safety and security is comforting, the more we try to protect ourselves from the scary world, the more fearful our culture becomes of losing that “security,” making it more certain that these programs will grow.
The idea of absolute security is absurd and impossible. The only thing we are accomplishing by allowing programs like this to continue is to tear out the pages of the Constitution, one at a time. In order to truly decrease the threat of terrorism we need to stop policing the world and forcing our will on others. Our country’s current mindset helps create the terrorists NSA so diligently hunts for yet can’t seem to find with their spy programs.