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Privacy in the Prism Age
What does the government really need to know?
Since the first reports were published last month in The Washington Post and The Guardian, statements have been made and then revised, both from government higher-ups and technology companies like Facebook, Google, Yahoo and Microsoft, as to the degree of cooperation and what information is being handed over and how.
The Guardian published another article just last week pointing a finger directly at Microsoft and putting greater focus on the level of cooperation it provided the NSA in accessing emails. The article states: “Microsoft has collaborated closely with U.S. intelligence services to allow users’ communications to be intercepted, including helping the National Security Agency to circumvent the company's own encryption, according to top-secret documents obtained by the Guardian.
“The files provided by Edward Snowden illustrate the scale of cooperation between Silicon Valley and the intelligence agencies over the last three years.”
So where do we stand today when it comes to privacy in the United States?
“It demonstrates the classic tension we find in America and all free democracies between a desire for personal privacy and to have the government not know anything about us and our desire for personal security, and the necessity of the government to gather and process information in order to maintain that security,” said John Allen, partner at Varnum.
“That, I think, is really a classic dilemma and made much more complicated in the electronic world when there is so much more information so much more easily available.”
Living in a post 9/11 and online world, the issues of privacy, laws and national security are growing even more complex.
In 2012, the Senate Judiciary Committee began debating changes to the Electronic Communications Privacy Act, which has become terribly outdated due to advances in technology.
The ECPA stems from the Fourth Amendment, which provides protection against unreasonable searches and seizures by the government. Proposed changes include whether a warrant is needed to search a cell phone.
“If you are doing something most reasonable people would expect to be private and not public, then that is one of the triggers that is used to say that the government must use some more supervised procedure before it can invade those topics,” Allen said. “That supervised procedure is usually a court, an independent judge, that must determine under legal standards developed over centuries whether the government should be authorized to look at or investigate that material.”
While Allen said the Fourth Amendment is one area to consider when discussing the Prism program, a greater issue is probably the “right to privacy.”
“You can read the Constitution all you wish and you won’t find anything about a right of privacy in there, but the Supreme Court has recognized a right of privacy to exist derived out of the Ninth Amendment, in court decisions going back to, certainly, as far as 1965,” Allen said.
“In 1965, the court, in a landmark case — Griswald v. Connecticut — ruled that the Constitution protected a right to privacy, at least involving certain marital activities. … Many courts, both state and federal, have launched upon that premise to find a right to privacy in many other areas.”
Again, these lines have become murkier in the age of the Internet and increased security.
“I think the greater controversy here is that the Patriot Act allows some data — and particularly, in this case, we are talking more about metadata, that is, data about data — to be reviewed and looked at,” Allen said. “This metadata has in some ways not been seized but been requested from those that gather it in centralized places, like for instance a cell phone or Internet provider.”
“The metadata is then reviewed. If the data about the data gives rise to a probable cause that relevant evidence may exist under the statute which threatens national security or is evidence of a crime, then those people go to a court, including the secret Foreign Intelligence Surveillance Act court, and use that court’s procedure in order for a judge to determine whether or not they are entitled to a search warrant.
“It is that Foreign Intelligence Surveillance Act of 1978 that established that court, and that was in operation long before 9/11 and has been used before that in order to authorize secret seizures of information.”
According to The Guardian: “Blanket orders from the secret surveillance court allow these communications to be collected without an individual warrant if the NSA operative has a 51 percent belief that the target is not a U.S. citizen and is not on U.S. soil at the time. Targeting U.S. citizens does require an individual warrant, but the NSA is able to collect Americans’ communications without a warrant if the target is a foreign national located overseas.”
Allen said he does not expect much to change legally because of Snowden’s revelations.
“The vast majority of people don’t get too upset about this, and I doubt that they will,” Allen said. “I think also we haven’t heard anything from any of the Congressional oversight committees that express any concern about this.
“I think, in the balance, not much is going to change. There may be a little bit of oversight done of the FISA Court; thus far, Congress has not paid much attention to that court or the way it’s administered the statute. It could be the judiciary could exercise a little more oversight and maybe make them document better the criteria they are using to issue a warrant and to allow the invasion of the content of the electronic data — that’s possible. By and large, I think it’s pretty much going to stay the same.”