How mass electronic surveillance in America came into being
The revelations of the US governments’ spying programs were shocking in terms of the vastness of its reach. But this has been the reaction from 2013 onwards. Go back to 2001, the year of the 9/11 attacks, and the programs perhaps seemed more understandable and necessary. Criminals and terrorists alike may use modern technology to communicate with each other, or as an aid to conduct malicious acts or invoke terror. Since national security is one of the most important responsibilities of any government, it needs to have the means to be able to achieve that. Thus, governments across the world have sought to develop ways that would equip it with those very means. Without them, terrorism and other criminal acts may persist, resulting in public safety being undermined.
The NSA has, therefore, a number of different spying programs it uses to conduct its surveillance for security purposes. They all vary in terms of what information is collected and how it is collected. Ultimately, all of the programs generally involve building backdoors into internet or telecommunications company’s software, acquiring encryption keys, as well as obtaining and issuing secret court orders or installing filters in the facilities of certain companies.
In 1978, the American Congress passed the Foreign Intelligence Surveillance Act. These newly passed laws were meant to regulate and authorise electronic surveillance, for foreign intelligence, conducted by the government. It was a response to the warrantless intelligence gathering activities that the executive branch had been involved in for decades prior. The passage of the Act helped to prevent infringements on Fourth Amendment rights, which, in the American constitution, protects US citizens from unreasonable searches and seizures. The Senate Judiciary Committee at the time said that the Act “went a long way in striking a fair and just balance between protection of national security and the protection of personal liberties.” FISA created a strict procedure in which the government must obtain judicial orders before conducting domestic electronic surveillance. Congress created two courts to deal with this process. The first was the Foreign Intelligence Surveillance Court (FISC), made up of US district judges, of whom analyse applications from the government requesting orders to conduct surveillance activities. The other court created was the FISC Court of Review, responsible for reviewing applications turned away by FISC.
Soon after the 9/11 attacks, President Bush swiftly signed into law the USA PATRIOT Act ("Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001”). This Act made changes to FISA, implementing more expansive provisions to enable the collection of even more intelligence. This led to the creation of an array of surveillance programs, including the Bulk Telephony Metadata Program, which focused on collecting and analysing both foreign and domestic phone records. Years later, the passage of the Protect America Act gave birth to the PRISM program. This particular surveillance program, which began in 2007, collected the internet communications generated from several US internet companies. All of these programs complied with the rules set in FISA, and they all needed approval and judicial orders from FISC before being pursued.
Despite these processes and rules governing the foreign surveillance conducted by the US government, many privacy advocates have expressed a strong opposition to them ever since the programs were revealed by Mr Snowden. Many have called it oppressive, overreaching, unconstitutional and have even described it as undemocratic. These raging adjectives and vehement statements came with various lawsuits being filed against the government. The legal challenges were not unique to the US, though; the Safe Harbour Agreement was also challenged in Europe since internet companies were revealed to have been assisting the NSA operated in Europe, therefore subjecting Europeans to their mass surveillance programs.
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The revelations in 2013 of the NSA’s mass electronic surveillance programs gave birth to today’s online privacy debate