Thursday, June 13, 2013

PRISM: Orwell was only about 30 years off

Last week, reports surfaced from the Washington Post and the Guardian about the existence of a top-secret government project known as "PRISM".  This program, implemented and sustained by the National Security Agency (NSA), collects data from the servers of major Internet providers and services (including Google, Facebook, Yahoo, YouTube, Skype, and Apple) and pulls information from any fiberoptic cable through which data travels. 

According to the federal government, the information is collected, stored, and searched for possible links to terrorism.  Authorities claim that individual Americans cannot be specifically targeted and that almost all data collected will never be seen by humans. 

An additional concern stems from the allegation that companies themselves provided the NSA with 'unfettered' access to their servers.  Google, Facebook, and Yahoo have already issued public statements contradicting those allegations, claiming they only surrender data to a governmental authority when provided with a court order.
One of the PRISM 'slides'

The information provided to the media about PRISM was revealed by Edward Snowden, a 29 year old IT specialist who worked in cybersecurity for both the Central Intelligence Agency (CIA) and the NSA.  Snowden leaked information about PRISM, and took flight to Hong Kong.  And now, Snowden's revelation has left America with significant questions that need answered.

Does PRISM violate the Constitution?  I believe this program represents a terrible violation of the Constitution.  This problem is the realization of the failed bill in Congress known as the Cyber Intelligence Security and Protection Act (CISPA) -- a violation of the Constitution's 4th Amendment.  This portion of the Constitution provides us security in our persons and effects, and implies a right to privacy.  Unless the government has a search warrant or probably cause, they cannot intrude upon the people.

The federal government argues that PRISM is still justifiable because they do not access the information collected unless they have a warrant from special courts, ones organized under the Foreign Intelligence Surveillance Act (FISA).  These courts exist only for the Department of Justice to seek warrants for searches of suspected agents of foreign entities.  That's wonderful, but that isn't the problem here.  Obtaining a warrant to search a suspected terrorist isn't terribly difficult for the government.  However, the real problem is finding out who the terrorists are.  This reveals the true intent of PRISM.

Proponents of the PRISM program (it has more than you might think) can make the argument that cyberspace represents a situation similar to airport security.  After all, people are subjected to warrantless searches in airports.  Courts ruled that a very narrow category of suspicionless, warrantless searches are permissible, noting:

However, "where the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as 'reasonable' -- for example, searches now routine at airports and at entrances to courts and other official buildings." (Chandler v. Miller)
 
Note that the courts articulated that blanket suspicionless searches must coincide with real risk, and only then is the search considered reasonable.  In the case of PRISM, how can the federal government justifiably claim that searching the digital data of hundreds of millions of Americans warrants the same scrutiny as an airport search?  We conduct searches at airports because of hijackings and other attacks that have been attempted and carried out by terrorists.  Can the federal government make that same case for collecting our data?  I doubt it.


Moreover, backers of PRISM argue that if you aren't doing anything wrong, why worry about the government collecting your information?  Because the point of privacy is that we have no obligation to reveal anything about ourselves.  Former Supreme Court Justice Louis Brandeis wrote about the the 4th Amendment in his dissent in Olmstead v. United States,
 
[The Framers] sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the one most valued by civilized men.


We should not abandon our rights out of mere convenience.  When America starts giving in to breaking its own standards to catch terrorists, it will have become the very sort of government it despises.

What does PRISM's existence mean for the future of the Internet and technology?  We have a new definition of the extent to which the government will go to achieve its goals, regardless of legality or constitutionality.  Americans must now presume that all forms of new technology, particularly communication devices, will be compromised.  The Internet and related hardware (computers, cell phones, broadband lines, etc.) are a permanent part of our infrastructure.  Society has become accustomed to the speed and convenience of a digital society -- online billing, instant purchasing, access to video, photos, and every other cool feature of computing.  There is no going back. 

Our main weapon against a government snooping into the affairs of its citizens is to choose new leadership.  And by that, a radical change must occur in the people, that government officials must either act in a more responsible manner in protecting our freedoms and securing the nation.  If they are unwilling or unable to do what is required, they must be replaced.  We live in an America with a citizenry that does not understand the need for diligence in holding politicians accountable, and that must change.

The fact that the NSA datamines information doesn't shock me nearly as much as the defense of the program from members of Congress and the lack of oversight of PRISM.  Senator Diane Feinstein (D-CA) stated, "These programs are within the law ... our obligation is keeping Americans safe ... Human intelligence isn't going to do it."  Mike Rogers (R-MI) commented in support of PRISM, saying, "One of the things that we're charged with is keeping America safe and keeping our civil liberties and privacy intact. I think we have done both in this particular case."  Senator John McCain (R-AZ) seemed to have no qualms about the program, noting the Patriot Act allowed for such programs as PRISM and Congress had authorized it.

Some members of Congress expressed frustration about several aspects of PRISM.  Rand Paul (R-KY) called for a challenge to the constitutionality of the program in the Supreme Cout.  Others complained of not being informed about the program's existence.  Additionally, in a committee hearing on March 12th of this year, Senator Ron Wyden (R-OR) asked Director of Intelligence James Clapper, "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?"  Clapper responded that they did not collect data and when giving his answer, he continually looked away from members of the committee and rubbed his head.  An outright lie.

So, what effect does this have on the Obama administration?  During his first term, President Obama dealt with accusations about the legitimacy of his citizenship and being called a socialist.  These sort of issues gained no traction with the American public.  However, the past 10 months have been different.

This PRISM scandal is one of many body blows the president received lately.  Americans still have unanswered questions about the September 11th attack in Benghazi, the Internal Revenue Service admitted to targetting conservative political groups for various purposese, and now the NSA collects every conceivable type of data on American citizens.  If these didn't provide the president with enough headaches, here's one more:  an inner department memo in the State Department alleges that an active U.S. ambassador, "routinely ditched his protective security detail in order to solicit sexual favors from both prostitutes and minor children." 

One of the hallmarks of the Obama administration was supposed to be transparency.  I'd say opaque would be a more appropriate descriptor right now.  I understand that certain parts of government activity need to be kept secret, but PRISM is another instance where President Obama made a rightward movement in terms of his ideology and policy.  The New York Times best summed up the situation, writing "The administration has now lost all credibility on this issue.  Mr. Obama is proving the truism that the executive branch will use any power it is given and very likely abuse it."  And this is the precise reason the government cannot be trusted with PRISM.  The power is too much.

The blame doesn't rest entirely on Obama, though.  President George W. Bush used a series of warrantless wiretaps during his administration as well..  Once the government realized the benefits and effectiveness of domestic data-mining, it becomes difficult to turn away from such a valuable tool.  Somehow, I doubt Bush and Obama are pioneers in this realm of snooping on citizens.  The legislation known as FISA was first introduced in 1978.  How many authorizations did the FISA courts permit before 2001?  Probably more than we would care to know.

Finally, what should we make of Edward Snowden:  hero or villain?  I don't know.  Yes, he rendered a valuable service to his country by informing us of an injustice perpetrated by our government.  That type of boldness requires a great deal of courage, particularly when faced with criminal prosecution.  Snowden reportedly made over $200,000 annually and lived a comfortable, happy life in Hawai'i with his girlfriend.  Surrending that life and fleeing the country for Hong Kong don't represent the actions of most people.  But I still have a few nagging questions about this man.

Snowden leaked information about PRISM to the news under the condition of anonymity, and then gave them permission to release his name after they ran the initial story.  Why?  Snowden claims he did nothing wrong.  But he willingly made himself a target -- he requested time off work for 'surgery' and fled the nation.  A man with his level of intelligence could have kept on working for a time, eventually transferred or quit his job altogether (presumably long after the 'storm' had passed) and no one would have known.  Journalists are renowned for their professional integrity when it comes to hiding their sources.  Why allow the media to reveal your name? 

One final thought on this issue -- why does the media have an obsession with Snowden's live-in girlfriend?  CNN and Fox News both keep reporting about this woman and how she has a YouTube Channel dedicated as a tutorial for pole dancing (apparently, she's a stripper).  Does it really matter what she does for a living?  Invesitgate the real story.

How will life change in America?  The sad reality of the entire PRISM saga is that this will not easily go away.  If anything, PRISM and other programs like it will be driven further underground into even more secretive parts of government agencies like the CIA or NSA, or to groups we don't even know exist.  Is that a little too conspiracy theory for you?  If so, think again, because it's already happened at least once.

In 2002, the federal government worked on a project known as Total Information Awareness (TIA), which would collect data in the same manner as PRISM currently does, and also harvest biometric data from public surveillance cameras, DNA samples, fingerprints, etc. to create a national identification system.  The government defunded the TIA project after concerns grew about privacy and 'Big Brother'.  Yet, PRISM still happened. 

America cannot allow fear to dictate policy.   We tolerate the the intrusiveness of the government because we are scared.  That must change.  There has to be another way to protect the nation that doesn't involve sacrificing principles.

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