Internet Privacy and the American Government

Anyone who has ever read Orwell’s 1984 knows the horrors of a government who knows too much about its people. The idea that “Big Brother” could be watching at any moment, at any time gives an uncomfortable feeling to individuals living in free society. After all, America was formed by citizens fleeing an overbearing government. As a result, the idea of our freedom and protection from the intrusion of government is a common theme in the U.S. Constitution.

However, in recent years, many privacy advocates have begun to wonder if modern intelligence agencies are willing to respect the boundaries of privacy when it comes to internet and communications technologies. It is a debate that evokes a passionate response from both supporters and opponents. While supporters declare that surveillance is in the name of national security, opponents argue that government surveillance is too broad reaching and intrusive and is a threat to our national security (Sun). This commentary will document many of the current rights to our information intelligence agencies enjoy, why intelligence operatives believe they should be expanded, and why privacy advocates think these rights should be limited.

To begin to understand the dearth of information available to the intelligence community, one must only look at Facebook’s current privacy policy. Law enforcement need only “request” information from Facebook for them to view it. This standard is much lower than reasonable suspicion needed to get a warrant; it makes a broader range of information available (Semitsu 299).

As far as text messages and other electronic communications are concerned, the U.S. Supreme Court currently defines our right to privacy as communication with a “reasonable expectation of privacy” (Semitsu 314). This interpretation excludes communication including third parties such as email providers or cell phone companies. In March 2008, courts ruled that “[text message] communications can be admissible when the proponent offers direct or circumstantial evidence as to their authenticity” (Stevenson). Therefore text and instant messages are considered admissible evidence in a court of law.

If law enforcement wants to read text messages, the Title III of the Omnibus Crime Control and Safe Streets Act of 1968 declares that law enforcement should minimize their use of wire, and electronic taps (Hyatt 1351). However, according to Seth Hyatt’s article this provision has many loop holes and is generally an unreliable mandate especially when it comes to electronic communication (Hyatt 1351). Many Law enforcement agents liberally interpret the idea of “minimization,” by using wire taps and viewing text messages more often that the courts intended.

The Foreign Intelligence Surveillance Act of 1978 is another piece of legislation that grants rights to the intelligence community. Jerold Nander, a representative from the state of New York, stated during a congressional hearing meeting on the subject of the expansion of the legislation, “The legislation allows the NSA warrantless access to virtually all international communications of Americans with anyone outside the U.S. so long as the Government maintains that the surveillance is directed at people, including both citizens and foreigners, who are ‘reasonably believed to be located outside the U.S.’” (Warrantless 3). Therefore, the intelligence community has access to all communications overseas including phone calls, emails, and instant messages.

Despite all the information available, according to the intelligence community, there are still information gaps. James Sensenbrenner, Jr., chairman of the House Subcommittee on Crime, Terrorism and Homeland Security, stated in a hearing that “the roving wire tape authority is not a free-standing provision. It does not authorize warrantless surveillance, nor can roving authority be used to target an entire neighborhood” (USA 1). Not only this, but wire taps are becoming increasingly useless as more and more people move to mobile devices for their communications. These devices are much more easily disposed of by criminals and consequently enable them to escape conventional means of detection. Thus, representatives like Mr. Sensenbrennr argue that intelligence laws should also include online information.

Lamar Smith the author of the SOPA bill stated in a hearing on the expansion of legislation for warrantless wiretapping that the intelligence community needed all the tools it could possibly receive in order combat terrorism (Warrantless 2). He said that “Nearly 60 percent of Americans polled on the subject of FISA reform supported the legislation Congress passed before the August recess. The simple fact is that Americans support surveillance of foreign terrorists when they contact persons in the United States” (Warrantless 2).

There is also the question of a reasonable expectation of privacy. Most of the information posted onto Twitter and Facebook is considered public and therefore free game to law enforcement. Lara Huey’s article on social movements with social media argues that it’s a bit difficult for an individual to make a case for privacy from the government when they make their information available to the general cyber public (Huey 703).

However, opponents of surveillance legislation state that we should not give up our freedoms for the cause of safety. Representative Conyers said at a committee hearing that he wanted meaningful oversight of surveillance practices and for the courts to be meaningfully involved in the collection of surveillance information (Warrantless 1). Americans in general are also very concerned with their privacy. According to a study published in Communications of the AMC, 56% of Americans surveyed were very concerned with their online privacy and 50% were concerned with government surveillance (Sun 120). Many of the people surveyed stated that they thought surveillance was intrusive, infringed on their personal liberty, and was unnecessary (Sun).

The 4th Amendment protects our right to privacy but Eli Shindelman, writer for the Boston Law Review, believes that law enforcement seized on the rapid growth of technology with wire taps and the viewing of emails, text messages and other electronic communications and has taken advantage of the courts unwillingness to determine whether the 4th Amendment applies to electronics (Shindelman 1921). Dr. Semitsu, professor of Law at the University of San Diego, believes that online users should be very aware of the limited amount of privacy they have while using Facebook and other social media technologies. He warns users to take precautions to prevent self-incrimination while using the internet (Semitsu).

Chief Judge Kosinski was apparently in agreement with those opposed to the expansion of government surveillance rights when he recently ruled on a case on the subject of using GPS tracking without a warrant in criminal investigations. His case involved a law enforcement agency who had applied a tracking device to a car without a warrant. He stated in his ruling that “In determining whether [GPS] tracking devices… violate the Fourth Amendment's guarantee of personal privacy, we may not shut our eyes to the fact that they are just advance ripples to a tidal wave of technological assaults on our privacy” (Stadnyk). Apparently, the judge holds that we need new laws to clarify how law enforcement can use new technologies.

The debate on just how much information should be available to the intelligence community continues to rage on. New arguments both for and against increased surveillance of American citizens spring up almost daily. With the ever looming idea of the “thought police” from Orwell’s 1984, law makers and our highest courts must seek to find a balance between safety and personal privacy. The broad amount of publicly available information currently is impressive to say the least. While the surveillance community argues that we must use every tool at our disposal to protect ourselves from the enemy, many opposed to the idea of the government peeking in on their private communications argue that we should not forfeit our freedoms for the sake of possibly increased safety.

Works Cited

Huey, Laura. "A Social Movement For Privacy/Against Surveillance? Some Difficulties In Engendering Mass Resistance In A Land Of Twitter And Tweets." Case Western Reserve Journal Of International Law 42.3 (2010): 699-709.

Hyatt, Seth M. "Text Offenders: Privacy, Text Messages, And The Failure Of The Title III Minimization Requirement." Vanderbilt Law Review 64.4 (2011): 1347-1393. Academic Search Complete. Web.

Semitsu, Junichi P. "From Facebook To Mug Shot: How The Dearth Of Social Networking Privacy Rights Revolutionized Online Government Surveillance." Pace Law Review 31.1 (2011): 291-381. Academic Search Complete. Web. 22 Feb. 2012.

Shindelman, Eli R. "Time For The Court To Become "Intimate" With Surveillance Technology." Boston College Law Review 52.5 (2011): 1909-1943. Academic Search Complete. Web. 2 Mar. 2012.

Stadnyk, Sophia M. "I Spy, With My Electronic Eye..." The Widening Net Of Surveillance In The Modern Age." State & Local Law News 35.2 (2012): 9-15. Academic Search Complete. Web. 2 Mar. 2012.

Stevenson, Karen L. "Courts Confront Admissibility Of Text And Instant Messages." Litigation News 33.3 (2008): 4-5. Academic Search Complete. Web. 29 Feb. 2012.

Sun Sun, Lim, Cho Hichang and Milagros Rivera Sanchez. "Online Privacy, Government Surveillance And National ID Cards." Communications Of The ACM 52.12 (2009): 116 120. Academic Search Complete. Web. 2 Mar. 2012.

"USA PATRIOT ACT: Dispelling the Myths." United States. Cong. House of Representatives. Committee on the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, May 11, 2011. Web.

Warrantless Surveillance and the Foreign Intelligence Surveillance Act : The Role of Checks Balances in Protecting American's Privacy Rights. Pt. I : hearing before the Committee on the Judiciary, House of Representatives, One Hundred Tenth Congress, first session, September 5, 2007. Web.