by Mitchell Plitnick
The Fourth Amendment to the US Constitution reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
It’s pretty incredible that in the United States an enormous lobby exists to distort the Second Amendment to make people believe that citizens should have unfettered access to enormous firepower, but there is nothing similar to guard the right to privacy. And when someone comes along and reveals the massive extent to which the United States government is spying on private communication between ordinary citizens, the debate becomes about “national security.”
There are, to be sure, good reasons why any government must keep things secret, and why there are laws to punish those who break the confidence the government places in them when it trusts them with classified information. But even the most elementary definition of notions like liberty and democracy demands that such secrecy be restricted to absolute necessity. The PRISM program and the revelations Edward Snowden made about it don’t begin to meet that standard. And the responses from not only US Director of National Intelligence James Clapper but also President Barack Obama are extremely chilling.
Explaining why the program was classified, Clapper said, “Disclosing information about the specific methods the government uses to collect communications can obviously give our enemies a ‘playbook’ of how to avoid detection.” Put bluntly, that’s just nonsense. How many of us, before the revelations about PRISM, believed all of our electronic communications, including the telephone, were impervious to government spying? The only thing Edward Snowden revealed was the existence of the program. Does anyone seriously believe that al-Qaeda thought they could just send emails around the world with no risk of discovery by the US government? Please.
As Obama said, “There’s a reason these programs are classified.” That’s true, but it is not because of the false choice the President laid out that US citizens “can’t have 100 percent security, and also then have 100 percent privacy and zero inconvenience.” No one is asking for that. Obama’s statement is meant to frighten us with the threat of terrorism into sacrificing more of our freedom. It speaks volumes that the PRISM program, though started by George W. Bush, has expanded exponentially under Obama. It says even more that the author of the Patriot Act (which first expanded the government’s power using the excuse of fighting terrorism after the 9/11 attacks), Rep. Jim Sensenbrenner Jr., a Republican, considers the program “an abuse” of the draconian law he wrote.
No, PRISM was not classified for security reasons, as the information it uncovered could be argued to have been. It was kept secret because US citizens would be angered by the breadth of the surveillance of their electronic communications. Again, many already assumed this was going on, though PRISM’s scope probably surprised them too. But the acquiescence of the internet corporations who own the servers being monitored — all the big ones, Facebook, Microsoft, Apple, Yahoo, AOL, et al — is going to have a chilling effect on internet traffic and internet commerce. That is one reason it was kept secret. The other is that the Bush and Obama Administrations were concerned that if the breadth of the surveillance was known, the people of the United States just might object.
Can there be a clearer violation of the Constitution? Not only does PRISM directly violate the Fourth Amendment in as blatant a manner as could be conceived, it was intentionally hidden only to make sure the will of the people could not enter the conversation. Yet the streets are not filled with US citizens demanding accountability. This says a great deal about the post-9/11 US, and just how much freedom we are now willing to sacrifice for a “war on terror” that has availed us nothing.
But the issue speaks to much more than just the rights of US citizens to privacy. Almost all of the restrictions that are in place and even the more ephemeral ones that Obama and Clapper claim to be in place act only to protect some measure of US privacy. According to the leaked PowerPoint presentation on PRISM (which, it should be noted, no one has claimed is falsified), the program uses search terms to find out which of the trillions of pieces of data it has intercepted are “foreign.” That it has only a 51% level of certainty is troublesome for Americans, but the implication that every single person on the planet outside of US citizens is fair game should trouble us even more.
Under the Foreign Intelligence Surveillance Act (FISA), which is the legal basis for this program, such spying on citizens of other countries can proceed virtually unencumbered. In olden times, before the internet, the limitations of access and prohibitive cost served as barriers to wanton surveillance. It simply was too much trouble and too costly to spy on random citizens of other countries.
But now, with a global data network, where every bit of information passes through numerous servers and where US corporations that own many of the biggest servers do a lot of their business globally as well, those restrictions are absent. Yet nothing in US law changes the playing field with the new technology.
Voices of outrage have already been heard in Great Britain, Germany, New Zealand and other US allies. But the main focus of the surveillance, of course, is countries like Pakistan and Iran. But what have we said to the citizens of those countries? That’s a question we might consider the next time we start thinking “they hate us for our freedoms,” which we in the US are sacrificing because of our own fear, rather than wondering if we are not enraging “them” with our hubris.
The scandal has been prominent, and the media fallout severe. Yet the US moves along with business as usual. The US government has violated the Constitution in the most egregious way, and we have established ourselves as a state that considers it perfectly acceptable to spy on everyone else, without any control or semblance of probable cause. You wonder what it would take to bring US citizens into the streets en masse. We could, perhaps, learn something from the Turks.