Kiersten Pennsylvania

Addressing Privacy

A discussion of the unconstitutionality of current surveillance programs and steps we should take to solve the problem

Dear Next President,

In June of 2015, the Patriot Act was allowed to expire; in June of 2015, certain provisions of the Patriot Act, including roving wiretap and “lone-wolf” terrorist targeting, were not allowed to expire. The majority of Americans had been dissatisfied with the Patriot Act, mostly due to perceived violations of civil liberties. Proponents of the USA Freedom Act, the successor to the Patriot Act, claim it to be a balance between privacy and security, however, the new Act neglects to regulate the National Security Agency’s (NSA) scope and access to information. The USA Freedom Act fails to protect the American people from intrusive, government surveillance and should be amended to more strictly monitor the agencies responsible for national security.

The roving wiretap provision infringes upon a person’s inalienable right to liberty. The fourth amendment secures the right against “unreasonable search and seizure” by the government and requires that a judge issue a warrant specifically describing “the place to be searched and person to be seized” in order for a search to be legal. Under the USA Freedom Act, government agencies, such as the FBI, are able to obtain warrants without properly identifying the location of their target, nor this person’s identity and, thus, broadening the opportunity to indirectly collect information on innocent Americans. Whether or not the collection of information is purposeful is irrelevant: even indirectly collected evidence on American citizens can be stored by the NSA for up to five years and retained, should it contain “usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity.” The “encrypted” condition for storage is critical: if an American is caught trying to maintain privacy online, their information is collected. Contrary to the basis of this practice, it’s unreasonable to assume that any user who masks their identity online is a terrorist: a study done by the Pew Research Center reports that 85% of Americans have attempted to conceal their identity online in one form or another. By collecting their information without probable cause, the senders of intercepted messages are being assumed guilty until proven innocent, which is a complete separation from the typical guiding principal of the American judicial system.

The threat of “lone wolf” terrorism, as well, is being exploited to violate an American’s right to privacy. Under USA Freedom, a “lone wolf” defines any non-U.S. person engaging in terroristic activities, however, no connection need be established between the target and a known terrorist organization. Julian Sanchez, a writer for national security and intelligence surveillance issues at Cato Institute, had the following to say about the lone-wolf provision:

The lone wolf provision effectively aims a Howitzer at a gnat, allowing souped-up tools

designed for Al Qaeda and the KGB to be used against people more reasonably seen as

criminal suspects — and in the process, against any Americans who happen to have

interactions with them.

The roving wiretap and lone wolf provisions of the USA Freedom Act disregard the rights guaranteed to Americans by the Fourth Amendment. Your location, text messages and photos may and are being collected by the U.S. government without probable cause. Any domestic intelligence could be intercepted and used, under the assumption that every American citizen has the potential to be a terrorist, without having sufficient grounds to prove that specific persons are likely to be terrorists. In no other area of life are Americans subject to such blatant transgressions of their Constitutional rights.

Proponents of the USA Freedom Act claim that it addresses privacy concerns through a modification of the Patriot Act: rather than the government, technology companies will be storing the information. This does not satisfy privacy concerns. Tech giants, such as Google, would then be responsible for storing information that could be accessed by surveillance agencies using a warrant. This change sounds immediately to be more lawful, however, there are two huge, gaping flaws with that assertion: Section 702 of Foreign Intelligence Surveillance Court (FISC) and Executive Order 12333. The former loophole, Section 702, allows the Attorney General and the Director of National Intelligence, not a court, to approve of data collection on non-U.S. persons reasonably believed to be located outside of the U.S. As discussed earlier, the surveillance agencies may keep communications of American persons for a variety of reasons and, thus, Section 702 grants the NSA power to inadvertently collect American communications without a warrant. The USA Freedom Act does not alter or affect Section 702. If that weren’t enough, Executive Order 12333 explicitly allows for American correspondence that is “incidentally” included in a court-ordered collection to be retained. Let it be noted that both Section 702 and Executive Order 12333 legalize the stockpiling not just of “metadata,” which is a vague and lofty term to many, but the content of the communications. For instance, metadata collection would show at what time the target talked to an American citizen, and content collection allows for the messages themselves to still be conserved for five years. While the USA Freedom Act is a step in the right direction for privacy, it is by no means the end of the discussion.

Modern surveillance programs are in conflict with all of the founding principles of our government. Those principles have served as the basis for the oldest standing Constitution of any major nation. Its plan of government is time-tested and its ideals have been proven effective in preserving and expanding the liberties guaranteed to the citizens of the United States. Historically, “freedom” in this country hasn’t always flawlessly materialized. Still today, we are amending our understanding of freedom: just last year, the Supreme Court ordered lower courts to recognize gay marriages. The world has changed tremendously within the 228 years since the Constitution was written, yet, the Bill of Rights, for everything it failed to do, allowed Americans enough freedom to redefine liberty as society changes with time. By neglecting to address the threat posed to American freedom by the current surveillance programs, you neglect to address the betrayal of our most sacred principles. Every American citizen has both a right and a duty to preserve their individual liberty. Our rights are inalienable; we are innocent until proven guilty; we grant power to the government, not the other way around. Let us question not what we hide from the government. Let us question what the government hides from us. Without proper oversight of both FISC and the programs used by surveillance agencies, there is no assurance that any of our rights are being respected. Allowing the executive branch of government to make decisions that affect millions of Americans everyday without any oversight by any other branch of government makes a mockery of our system. The problem with surveillance is much larger than an email to a friend being archived: it’s the byproduct of a huge shift in what defines American policy and American government.

There are ways to maintain national security without sacrificing the citizens’ right to privacy. Modifications to the USA Freedom Act will not be enough, though it will help set a new precedent on attitudes toward intrusive surveillance programs. As an ordinary citizen and even more as President, you have a duty to demand that the people’s rights be respected. Think of the legacy you could have by helping to dismantle the surveillance-industrial complex. Mr or Ms President, you personally have the power to modify executive orders. Repeal Executive Order 12333.

Dutifully yours,

Kiersten B. 

Science Leadership Academy at Beeber

Science Leadership Academy @ Beeber - E band

Students from Ms. Burrows-Stone's English 3 class at SLA Beeber write persuasively about issues that matter to them in the 2016 election.

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