The Emergence of the Unnecessary Security State
When issues such as government surveillance arise, it is revealed how ill-equipped the current state of our Constitution is to deal with the growing challenges of modernity. The authors of our Constitution could not have even imagined the internet, much less the demand for unregulated use of citizen data and the degree of control that it brings. The issue highlights whether the government is in the position to compromise idealism in favor of pragmatic concerns for safety. Yet, when there is no conclusive evidence introduced as to the utility of mass surveillance, it becomes harder to delineate a clear defense. Indeed, in terms of security, mass surveillance has created no substantially positive difference in our capabilities to prevent terrorist attacks. Further, the Constitutional ramifications of such egregious violations of due process and the Fourth Amendment have long-term negative effects on liberal democracy.
In June of 2013, the United States suffered a leak of classified intelligence, the culprit being a former independent contractor for the National Security Agency by the name of Edward Snowden. Snowden’s release of classified information was a mix of intelligence on operations performed by employees abroad as well as on surveillance operations within the US. Snowden specifically alleged that leading companies in Silicon Valley were complicit with data harvesting attempts and data surveillance. This surveillance extended into media activity, private communications of citizens, and culminated in mass swaths of stored data that the NSA claimed to only search with just cause.
Due to the secretive nature of the pursuit of terrorist organizations, it is almost impossible to be sure we have seen all the relevant information. A thwarted cyberattack, for instance, may have links to a broader network or require ongoing attention and be deemed too sensitive to be released to the public. While these are both plausible theories as to why it is difficult to definitively judge the utility of our current security methods, the current information provided is exaggerated and paints a picture of governmental impotence. In response to the Snowden leaks, the NSA claimed that it had successfully thwarted more than fifty-five terrorist attacks – a figure that is unconfirmed. Any further information remains classified, but in every public terrorist plot identified at the time of publication it cited conventional police work as the source of intel. Of all known terrorist plots during the period of 2001-2013, forty-two plots are within the public record, nine of which were successful. Upon further analysis, it was revealed that the “public record shows that at least 29 were uncovered by traditional law enforcement methods, such as the use of informants, reliance on community tips about suspicious activity and other standard policing practices.”
The process by which metadata, or the aggregate of data collected through social media, for example, is utilized is as unclear as the success rate of the NSA’s methods. In early leaks of the NSA’s actions under the Foreign Intelligence Surveillance Act, Snowden revealed a significant data mining project known as PRISM. PRISM allegedly allows the government to coerce major companies into backdoor connections to extract user data. This was vehemently denied by Silicon Valley firms in the aftermath of the Snowden leaks, but later analysis revealed the reach of the government to be much more comprehensive than previously portrayed. Under Executive Order 12333 the NSA has expanded into more projects of bulk data collection offshore. This includes but is not limited to the “NSA’s collection of billions of cellphone location records each day; its recording of every single cellphone call into, out of, and within at least two countries; and its surreptitious interception of data from Google and Yahoo user accounts as that information travels between those companies’ data centers located abroad.”
The process of separating useful intelligence from these mass collections of user data is a dysfunctional tool for opposing terrorists. Before a terrorist attack occurs, there is a multitude of variables that could indicate possible terrorist activity but these are unlikely to be picked out of the metadata. Even advanced capabilities cannot predict definitive scenarios, and what results is an expensive, morally questionable fishing expedition. In the words of a security expert “after each terrorist attack if you want. When you look, it's easy to make the link between, say, an information request coming from Russia, a visit abroad, and other potential information gathered elsewhere. So with hindsight, we know who the terrorists are. That's why we're able to chase after them, but not stop them.” This delegates the role of the NSA to clean up, rather than preventative action. There is little indication that the NSA provides any intelligence with more than a marginal impact.
There is no conclusive benefit that the NSA has been able to demonstrate to the public. The costs of mass surveillance, on the other hand, have only begun to come to fruition. Since the reveal of mass surveillance practices in 2013, the issue of undue searches of the electorate has only become more salient. Further, unjustified searches of Americans’ data spiked by 28% in 2018, doubling the 2015 figure. Representative Adam Schiff established in 2013 that warrants were not required to conduct a search using this data. The system in place is wholly constructed on a good faith assumption about an agency that operates without oversight. While FISA courts do exist, the only records of it operate on a very accommodating basis “The NSA doesn’t have to get court approval for each query. Its searches are collectively “pre-approved,” based on vague standards that the agency itself gets to interpret. — Officials tell us there are detailed demands and rules, issued by the court, that limit how the NSA can use the data. But they haven’t shown us any documentation of those demands or rules.”
The discretion with which the NSA is able to operate is a gross violation of the Constitutional principles of government accountability within itself. The impact that mass collection of data will have on the minutiae of our day-to-day lives has yet to emerge in the United States but is not difficult to imagine. Globally, however, the mass collection of data has been used by authoritarian governments to undermine the rights of citizens. China’s algorithm-based surveillance state monitors every citizen in the name of public safety. Mass collecting data in the forms of citizen profiles to further the goals of the state. As we balance the threat of terrorism within the homeland with our Constitutional rights, citizens should be alarmed at the lack of protection we are granted under the law. Mass collection may begin in the name of public safety, but if we are late to impose accountability we may lose any control.
Image courtesy of Student News Daily
