Essay: NSA Surveillance Legality

The United States of America has stated that the utilization of the upstream data collection of data and the PRISM by the National Security Agency (NSA) has played a crucial role in thwarting more than fifty possible terrorist threats since the 9/11 terrorist attacks on the United States of America (The Federalist Society 13). In light of the above achievement, a gap has developed between the contemporary surveillance schemes and the fundamental human right to privacy. For instance, PRISM as a surveillance operation has had a significant impact on the rights of the citizens to privacy. Besides, the case of upstream data collection and PRISM illustrate the vulnerability in the digital era of the right to privacy and the unprecedented interference of personal information in the digital domain. Although the NSA surveillance has contributed positively in the fight against terrorism, the indiscriminate and secret intelligence surveillance does not justify the fight against terrorism to violate the right of privacy.
In the 21st century, the new technology has contributed significantly to the facilitation and the violation of human rights. On that note, the surveillance operation conducted by the United States NSA has a code name Special Source Operation that has an aim of collecting data and looking for a wide range of internet data content for information that would determine the level of terrorist threats and interception in the United States of America (Stoycheff 302). The PRISM program contains another version of the surveillance that includes XKeyscore, BULLRUN, and the Upstream. As an illustration, the Upstream data collection involves copying of data from the private and public networks into the NSA system and the fibre-optic cables to switch the central exchange of the internet tariffs (Kilroy 101). On the other hand, the XKeyscore initiates the search of a full take data at over one hundred and fifty global sites on seven hundred database servers. Furthermore, the system incorporates the data collected from the United States Embassy sites, microwave transmissions and the foreign satellites. What’s more, the encryption technology used by the NSA need a service provider to assist the government in acquiring the all the relevant information and the facilities to process the information from the foreign intelligence (Bernard 23). Subsequently, the programs involve the disclosure of secure data using the security keys that protect the data in transit. The personal data that PRISM collects runs through a shared forum of bulk intelligence of five different countries has the primary aim of detecting and eliminating terrorism at the expense of the right to privacy.
The right to privacy declared by the United Nations in 1948 from Article 12 is part of an international and regional convention for human rights that prohibit criminal violation of the privacy right without limiting whether the interference of the right to privacy comes from the state, private actors or foreign state (Sloan 36). Similarly, the right to privacy has an obligation to protect the precise private domain like a person’s home, family, body and at the same time restricts the sharing, use and the collection of personal data about the individual. Most importantly, the violation of informational privacy should not justify the fight against terrorism and espionage, and the concerned person should be in a position to foresee the consequences with complete clarity and precision. At the same time, the law should use competent authorities to supervise and review the effectiveness of the legislation that guarantees against abuse. However, the PRISMS involves the United States having the direct access to the private data of its citizens as well as other Europeans. Moreover, the personal data is stored for processing in the US technical infrastructure through internet service providers like Google, Yahoo, and Facebook.
Several human rights agencies have expressed concerns over the PRISMS program and other programs that specifically affect the fundamental rights to privacy and freedom. Interestingly, the government of the United States while expressing the need to counter terrorism addressed the legality and the lawfulness of the NSA surveillance programs (Brandt 4). Consequently, the Human Rights Committee in 1988 presented an analytical evaluation of the limitations to the right of privacy and determined the cumulative conditions under which the violation of the right to privacy is justifiable. The cumulative legalities state that the law should provide any restriction and have some necessity in the democratic society, and the measures of restriction must conform to the proportionality model of human right guaranteed. Therefore, when the test for analysis of the violation of the human right to privacy, the cumulative provision suggests that the surveillance architecture by the NSA completely violates the statutory obligations of the United States of America (Joergensen 2). It is evident that the NSA surveillance has been operating by vague and extensive provisions of the FISA (Foreign Intelligence Surveillance Act) and thus lack a legal basis. By extension, the specific information of individuals does not give the people the fundamental elements of the law regarding accessibility and foreseeability as required by the code of proper legal conduct.
Since the PRISMS program exhibits lots of sophistication, the intrusion into private and personal information via the collection of mass data has influenced the core of inviolable private information. What’s more, the data accessed has been used to identify the people whose data have been collected. Moreover, the intrusion of employed by NSA’s PRISM has not justified that the program is effective in preventing terrorism or other grave crimes in the United States of America. The program has failed to ensure that the proportionality proponent for justifying the violation of human rights to privacy because the program has not provided any protection of privacy to the non-citizens and the many innocent individuals targeted by the PRISM and Upstream data collection program. Still, the program has pursued by lawful means the legitimate national interests by pressing on the social needs to justify the privacy interference of the regular citizens. The programs have lacked mechanisms of the judiciary and legislative oversights limit the vulnerability of the abuses because the operation applies discriminatory enforcement that results in the violation of the human rights to privacy and freedom.
By collecting data on emails of innocent Americans, NSA has trespassed the Fourth Amendment to the United States Constitution that restricts searches that are unreasonable, and the seizures should require a warrant sanctioned by the court or probable cause. In light of the growing controversy, the NSA responded by stating that the collection and the interception of domestic emails were not intended because the separation of the target data was difficult for the communication between the Americans and the other foreigners. However, there should be no excuses for not separating the email because the agency has enough resources to distinguish the emails used by the terrorists from the emails the innocent Americans. Besides, the NSA has software that is capable of view the browsing history of anyone’s internet search and email chats without the warrant of a court. However, with the increasing online communication and the rising levels of globalization, the role of protecting the Americans decreases because the collection of information becomes challenging and cumbersome. The Oversight Board that condemned and bashed the NSA phone surveillance has justified the collection of electronic communication and email content through internet backbone cables (Kilroy 102). They argue that the upstream collection and the PRISM is a program that the government requests for information apart from being a surveillance database. Interestingly, the system operates by collecting communication but not in bulk thereby justifying the legalities of the program.
The cell phone tracking records for the NSA domestically averages about five billion records in a day and stores the location of millions of device locations in a massive database. They install intercept materials and equipment all over the country and apply mathematical techniques to predict and correlate the patterns of movement to analyze the paths in the co-travel program. Furthermore, the program can track the movements of people and the intersection of individuals who communicate with the targets of terror attacks. The NSA has program codenamed Dishfire extracts information from the analysis of SMS messages from travel alerts, bank alerts and the names of electronic business cards to gain information on the people who are not specific targets or under any form of suspicion. In addition, the NSA’s capability of spying and invading the privacy of ordinary citizens has reached critical levels because they can track numbers of both the individuals in a conversation as well as their locations. Still, the NSA can monitor texts, the crack the encryption codes, track data cell applications data, credit card purchases, and financial transactions and intercept calls by installing a fake SIM card to control the phone activities. Out the few mentioned programs, the NSA can set up surveillance and limit the right to privacy without a legitimate probable cause or a court warrant.
In summary, the capability to monitor everything through the surveillance programs of the NSA has sparked widespread controversy touching on the right of privacy and the general freedom of the ordinary American citizens. Nevertheless, the emergence of the revelations that the surveillance powers of the NSA continue to infringe on the privacy of personal information, the PRISM, the upstream data collection, cell phone monitoring and the XKeyscore programs have illustrated the vulnerabilities in the digital age concerning the unprecedented interference of personal data and the right to privacy. Finally, clarifications and in-depth analyses to substantiate the human rights and privacy principles affected by the flow of data globally and account for technological developments that pose serious challenges to personal information and the right to privacy. Although the NSA surveillance has positive contribution in the fight against terrorism, the indiscriminate and secret intelligence surveillance does not justify the fight against terrorism to violate the right of privacy.
Works Cited
Bernard, Richard L. Electronic Intelligence (ELINT) At NSA. 1st ed., Fort George G. Meade, Md., Center For Cryptologic History, National Security Agency, 2009,.
Brandt, Bradley L. Constitutionality and Legality of NSA Surveillance Program. , 2013. Internet resource.
Joergensen, R. “Can Human Rights Law Bend Mass Surveillance?”. Internet Policy Review, 3(1)., 2014, doi: 10.14763/2014.1.249.
Kilroy, Richard. “No Place to Hide: Edward Snowden, The NSA, And The U.S. Surveillance State. By Glenn Greenwald, New York, NY: Metropolitan Books, 2014”. Journal of Strategic Security, vol. 9, no. 3, 2016, pp. 99-102. University Of South Florida Libraries, doi:10.5038/1944-0472.9.3.1552.
Sloan, Robert H. and Richard Warner. “The Self, The Stasi, The NSA: Privacy, Knowledge, And Complicity In The Surveillance State”. SSRN Electronic Journal, Elsevier BV, doi:10.2139/ssrn.2577308.
Stoycheff, E. “Under Surveillance: Examining Facebooks Spiral Of Silence Effects In The Wake Of NSA Internet Monitoring”. Journalism & Mass Communication Quarterly, vol 93, no. 2, 2016, pp. 296-311. SAGE Publications, doi:10.1177/1077699016630255.
Terrorist Surveillance and the Constitution. Washington, D.C.: The Federalist Society, 2007. Print.