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The Continuance of Government Internet Surveillance: Legal Considerations

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Introduction

Technology use is a predictable cycle: first new advances are available only to government officials, then as the technology is perfected and mass produced, it can be found in nearly every home in America. According to a study done by Pew Research Center, a nonpartisan nonprofit that conducts nationwide surveys, 88% of U.S. adults use the Internet, and though less than 30% believe that surveillance of calls and emails are a favorable method of decreasing terrorism, 56% do not think the government has gone far enough to protect the nation (“Internet/Broadband;” Raine, Maniam).

Maintaining a balance between protecting civil liberties and protecting citizens from attack has proven exceedingly difficult. After 9/11, Congress enacted a highly controversial law that enhanced their ability to conduct surveillance to prevent another terrorist attack from occurring, known as the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism or USA PATRIOT Act (United States Congress, House, Permanent Select Committee on Intelligence, PATRIOT Act). Those who wish for privacy cite the U.S. Constitution, which guarantees freedom from undue searches and seizures (Amend. IV). Others point to the terrors of 9/11 and maintain that the only way to prevent this from reoccurring was to monitor those suspected of affiliation with criminal organizations.

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Protecting Civil Liberties

Many U.S. citizens, for whom the right to privacy is ensured, see government surveillance as a blatant, entirely unconstitutional, overreach. One of the most ardent opposers of the PATRIOT Act is the ACLU, or American Civil Liberties Union. They note that Bush’s signing of the PATRIOT Act allows for surveillance of possibly thousands of U.S. citizens with “no requirement that warrants be obtained from the Foreign Intelligence Surveillance Court,” as required by previous laws (“NSA Spying”). An American Bar Association articles notes that with the passage of the PATRIOT Act, the government can conduct domestic surveillance if a “significant purpose” of said surveillance is foreign intelligence, rather than the “primary purpose” as previously required (Shamsi, Abdo).

A major argument against the use of unwarranted and unchecked surveillance is the Supreme Court ruling that people cannot be surveilled without a warrant where they have a “reasonable expectation of privacy;” though originally applied in the case of law enforcement attaching a listening device to a telephone booth a suspected criminal was using, the use has extended to refer to any situation in which one would not expect to be under surveillance (Katz v. United States). For example, many have taken it to mean that actions inside one’s home have an expectation of privacy but conversations in a public space do not. Technology has rapidly changed the face of communication and surveillance, but the laws governing such actions have not. Philip B. Heymann, professor of law at Harvard Law School and former Deputy Attorney General, notes that there are several actions such as observance from a public place, giving information to a third party from whom the government obtains it, and informants, among others, that are not constituted as a “search” and are thus not subject to Fourth Amendment protections (425-426).

Moreover, many current laws were put in place when available technology limited their practicable use. For example, both government agents and citizens are legally allowed to surveil the public if they are 50,000 feet in the air, but, when this law was passed, most felt no harm from this as it was nearly impossible to both attain that height and observe anything useful from that distance; now technology is available, as a matter of cost, almost exclusively to the government to allow effective surveillance from such a height, yet the old law still stands (Heymann, 429). Similarly, the 1986 Electronic Communications Privacy Act, or ECPA, that governs most Internet privacy rules, mandates that a warrant be required to access emails from the provider’s storage if the email is less than 180 days old, with less stringent standards after that — this made sense when emails were typically downloaded onto the recipient’s computer, but now many users store and access their emails from a remote server, and therefore “[b]asing legal protection on how long an e-mail has been stored…is inconsistent with the way Americans use e-mail today” (Shamsi, Abdo).

A major concern is that, with government Internet surveillance, innocent users will be swept up in the tracking of terrorists and criminals. In 2008, the FBI received the unwarranted locations of “not just…a robbery suspect, but…180 other innocent people in a dragnet scheme to see if they were involved in the crime” (Shamsi, Abdo). As per a Stanford Lawyer Magazine article, the PATRIOT Act authorized increased use of NSLs (National Security Letters, which allow government officials to obtain user information from Internet and phone companies about their users without a court order and often include a gag rule), and when in 2011 an unnamed company was asked by the FBI to provide them with customer records, federal district court judge Susan Illston ruled the NSL unconstitutional (Rigoglioso). Personal privacy is a huge component in the legality of government Internet surveillance.

Protecting the People

As ardently as some argue that government surveillance is a breach of legality, others point to its necessity and the protections in place to guard civil liberties. John Yoo, Deputy Assistant Attorney General of the U.S. Department of Justice, mentions the wide scope of modern terrorist organizations: no longer can one simply find a list of every person likely to be associated with crime, everyone is a possible affiliate (11).

Proponents of Internet surveillance also cite outdated laws as problematic, but for different reasons. The Foreign Intelligence Surveillance Act (FISA) standards for surveillance required an extensive review process to be submitted to Federal Intelligence Surveillance Court (FISC) for approval, and though the USA FREEDOM Act (Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015) added a clause that allows for emergency surveillance to be approved by the Attorney General while the formal application is completed, Yoo maintains that “[i]n this world of rapidly shifting e-mail addresses, multiple cell phone numbers, and internet communications, FISA imposes slow and cumbersome procedures on our intelligence and law enforcement officers,” which may allow criminals to escape under the nose of the law (United States Congress, House, Permanent Select Committee on Intelligence, Fulfilling Rights; Yoo, 14). The Supreme Court and other federal courts have ruled both ways on government surveillance. Though the court seemingly ruled against warrantless wiretaps in their decision of necessitating that wiretaps cannot be conducted where one has a “reasonable expectation of privacy,” the definition of “reasonable” is open to interpretation (Katz v. United States). In 1979, the Supreme Court ruled that citizens cannot have a “reasonable expectation of privacy” in the phone numbers they dial, because those numbers must be transmitted to the phone company in order to place the call, and in 2001 the Sixth Circuit Court of Appeals applied the same logic to the Internet, ruling that email addresses are provided to an outside party and thus not covered by the Fourth Amendment (Michael Lee Smith, Petitioner v. State of Maryland; Guest v. Leis). Such rulings legitimize the use of government Internet and telephone surveillance.

Supporters of government Internet surveillance acknowledge that protecting civil liberties is important, but point to provisions already in place that protect such liberties and technologies that could protect privacy while not compromising the benefits of surveillance. Orin S. Kerr, professor of law at USC Gould School of Law, notes the FBI’s use of the program Carnivore, which is designed to filter out information unnecessary to the investigation or beyond the scope of the warrant, to ensure that law enforcement is complying with court orders and not unduly invading privacy (652-653). Likely because of its vicious-sounding name and its installation directly at the ISP (Internet Service Provider), Carnivore has been interpreted to devour much more information than required, but this is a miscommunication, as Carnivore actually protects privacy and its installation at the source “minimizes the amount of Internet traffic that needs to be scanned” (Kerr, 654). Such technologies exist to ensure privacy rights are being protected while surveillance is efficiently conducted. Balancing privacy and protection is essential in the age of the Internet, but doing so requires an agreement on what is best for the people.

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