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Warrantless Electronic Surveillance: Privacy and Law

Introduction

Warrantless Electronic Surveillance involves secretive use of devices like cameras, tape recorders and others in monitoring what people are doing at different places and events to ensure that all is done in the right manner and that such information can be retrieved when needed. The main objective of the Warrantless Electronic Surveillance is to monitor criminals and other suspected activities and gather all information concerning them. This is used in arresting criminals or investigating crimes that are done in secret. It enables the country to deal with and mitigate the cases of crime in the country. It is a crucial technology that a country can invest in and be able to fight against crimes and other unacceptable conducts within the country. In the United States, electronic surveillance is usually conducted throughout the people’s lives for instance in the military, law, congress, judiciary, the president, law enforcement and the public sector. The private sectors apply the electronic surveillance (O’Brien 22).The government is vested with the role of safeguarding the rights of its citizens. In the United States however, the government is deemed to violate people’s rights through the monitoring of the communications through the Warrantless Electronic Surveillance. The National Security Agency use of such technology was necessitated by terrorist attacks that occurred in US in 2001 and electronic surveillance was thought best for dealing with such acts in future. The main aim of the program was to enable them security agents to gather intelligent information that could be vital in tracing the Americans who collaborates with the terrorists so as to protect the state from occurrence of such activities in the future; with the implementation of this program. According to Richard polsner, [Foreign terrorists would find it difficult to communicate with colleagues or sympathizers in the United States if they had to do so face to face or through messengers because they would know the government was eavesdropping on all their electronic communications] (Richard 3). There was controversy following the implementation of this program as most people held the view that the government was going against their rights as their privacy was no longer maintained. Also, there were some who supported this bill as they argued that the Warrantless Electronic Surveillance program is a useful tool that could be used to keep a close looks at the terrorists together with their activities. Richard Polsner who is an American philosopher and a judge held the views that the Warrantless Electronic Surveillance violates the rights of the American citizens as far as their privacy is concerned. The following essay thus examines the Richard Posner’s article in favor of the Warrantless Electronic Surveillance and tries to provide the case for and against the program. The essay also has a conclusion which refutes the Polsner’s article in favor of the Warrantless electronic surveillance.

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Surveillance and Law

George Bush during his presidency signed a secret order in the year 2002 that authorized the NSA to scrutinize the e-mails and international calls of thousand of the American citizens without a warrant from the court and this was indeed illegal as the American’s civil liberties were abused. The president felt that he operated within his executive powers for the sole purpose of protecting the U.S citizens. By doing this, the president acts as a tyranny by exceeding the powers vested on him in the constitution (Taslitz 31).

The Patriot Act in the USA has facilitated the capturing and monitoring of the information contained in electronic devices especially with the rapidly advancing technologies such as the internet. There are three laws that are amended with regards to the electronic interception and they include the Title III also known as wiretap statue, The Foreign Intelligence Act and the Electronic Communications Privacy Act. Title III is used to monitor the substance of every communication in order to ascertain the meaning of such communication. The Supreme Court has the view that communication contents are under Fourth Amendment protection and there are some seizure and search requirements that make it hard for the government to access such information in full. The Electronic Communications Privacy Act commonly termed as ECPA is used by the government in order to intercept electronic communications so as to capture and monitor the information. Under them Foreign Intelligence Surveillance Act (FISA), the government has the legal capacity to seek the court permit to use any mode of electronic surveillance on individuals who are guilty of terrorism activities or who are agents of a given foreign power in the U.S including the Americans. The NSA surveillance bears some issues whose legality falls under constitutional law and also under the statutory interpretation that is, interpreting the law in the context of a given case. Constitution law on the other hand refers to the body of laws that governs interpretation of United States constitution. The constitution law governs the relationships of state and its citizens and other issues that the US government considers fundamental and as requiring the intervention of the law.

The NSA controversy made Warrantless Electronic Surveillance to appear as Terrorist Surveillance Program and was so termed by the government under the reign of Bush. The program however operated under the Foreign Intelligence Surveillance Act commonly termed as FISA.The legal challenges however concerning this program are undergoing the judicial review.The program was ruled illegal and unconstitutional by Anna Taylor who was the District judge of the United States in 2006.Thew decision was however overturned following procedural grounds but Alberto Gonzales , the Attorney General informed the senate leaders that the Terrorist Surveillance Program would be under the judicial oversight. The Fourth Amendment of the U.S constitution law is concerned with ensuring that the personal lives of people and their properties are secure and free fro any threat. It also protects them against unreasonable seizures and searches.

The common law is concerned with ensuring that Warrantless electronic surveillance does not in any manner interfere with the lives of the citizens of America. The common law has recognized the need for individual privacy throughout the 20th century. The underlying principles as far as the common law is concerned include the autonomy, secrecy and seclusion. The secrecy rights protect disclosure of such information that is considered confidential and may cause embarrassment to the person it addresses if exposed to the public. The common law on the other hand protects the above privacy interests mainly by imposing some civil liability on anyone who gains from another person’s ideas, name or publicizes facts concerning the privacy of another person. Under the common law Title III, video surveillance in locker rooms, dressing rooms and other s8uch places are enough to give evidence regarding claims of privacy invasion and give the avenue for investigation of the validity of such claims (Richard 154)

Types of Warrantless electronic surveillance

They are of three types that are considered useful in the US and include the wiretapping, videotaping and bugging and these are the ones mostly used in the US. For wiretapping surveillance to be accomplished, it is necessary to have a qualified technician whose work is to tap information into telegraph wire and make it relevant for its purpose. Bugging surveillance may not necessarily use telephone wires for it to be accomplished. Listening devices are normally used in order to convey the conversations being tracked to a recorder and a receiver which ensures complete surveillance. Video surveillance is accomplished using cameras that records and conveys visual images that are later ready for use may be on tape (Richard 154).

Other types of electronic surveillance include the use of social network analysis such as the Twitter, Myspace and the Facebook. The social networks such as Twitter, Myspace and others are normally data mined. This is meant to ensure that important information of a person in his affiliate groups is trapped and used as needed. The U.S government agencies investigate the social network analysis research with an aim of identifying the possible terrorist suspects. This enable the government to mitigate such cases of terrorism and be able to counters them in case they recur in future (Taslitz 31).

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Another mode of electronic surveillance is the biometric surveillance and is also commonly used in the US. This technology analyzes behavioral characteristics of a person which aids in identifying that person and his characters for purposes of an act requiring investigation. Examples of biometric surveillance include the DNA, fingerprints as well as facial patterns (Inc Icon Group International 167).

Aerial surveillance on the other hand gathers video or visual imagery of a person or places and to record such information, helicopters and such other means are used. Another mode of surveillance is data mining and profiling. Data mining uses algorithms and statistical devises to unveil that relationship that exists within a given data that could not be ascertained by mere observation.

Data profiling gathers information of an individual or group in order to create the profile stipulating the particulars of such people or groups (Michael 16). Data profiling is usually a powerful tool as far as social network and psychological analysis is concerned because an analyst can find out facts about another without the person being consciously aware about it. Others include corporate surveillance and human operatives (Inc Icon Group International 167).

The information that is captured by the electronic surveillance programs could include web, page downloads, e-mails and any other form of electronic information. The right to privacy issue arises when there is illegal search of the electronic information by the government without a court order as it’s stated in the constitution of the United States of America. The electronic searches would however constitute to illegal searches and hence violating the rights to privacy of the American citizens (Michael 15).

Case against the Warrantless Electronic Surveillance according to Polsner

According to Richard (247), eavesdropping usually hampers communication in that once people realizes that they are being listened to, candor as well as clarity of their conversations is impaired. Warrantless electronic surveillance causes people to conceal some useful information as they fear that the information will be used against them by the government. Frank communications on the other hand enables people to share out ideas to friends and colleagues freely.

The article by Richard Posner (247) reveals that Warrantless electronic surveillance can cause harm to businessmen because their ideas concerning competition can be exposed to the rivals. This in turn will eliminate them in the business as the rivals will be maximizing on their business ideas. The NSA employees might be running some businesses as they carries out their security job and so they might listen to the ideas of Americans concerning business and use them so as to stay ahead of the competition.

The Warrantless electronic surveillance is posing fear among the innocent American people as analyzed in Richard Polsner’s article.Terrorists can decide to conceal their plans and clues form the intelligence officers by use of certain such programs. The security intelligence will thus be compelled to arrest anyone who utters words that may be slightly interrelated with terrorism even if the person who said so was just having a normal conversation. This will also inhibit the exchange of valuable information and ideas freely.

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Richard Posner continue to argue that the disclosure of the information about people may not be effective in the case where the government relies on such electronic surveillance such as camera because there are those individuals who always stays at their homes and so the government can’t be able to access their personal information.

Some of the searches according to Polsner are illegal as well as unconstitutional as they violate the Fourth Amendments because they don’t specify those things that need to be seized or searched. The government does not focus on a specific area and this causes some ambiguity. People are however worried why searches that are aimed at collecting information about individuals living outside the United States ends up gathering information on the Americans.

The Richard’s article (249) reveals that the Warrantless Electronic Surveillance has the effect of depriving the privacy of the American people. Human beings are usually entitled to be left on their own, safe and most importantly have their space. With the advancement of technology and the Warrantless Electronic Surveillance for this matter, the privacy of the American citizens is at stake as there are those people whose main motive is to gather information about others and use it against them e.g. many nude pictures have been posted in the internet over the past few years without the consent and knowledge of others so as to tarnish their images. This act affects one emotionally as one is embarrassed once he or she gets to know that his or her nude pictures have been viewed by a strange person in a remote place. The nudity taboos exists in many cultures and so as a result of the Warrantless Electronic surveillance, many people fears that others will conceal their information and hence use the information against them for their own selfish needs to blackmail another person or to destroy ones career. As the electronic monitoring is usually surreptitious, it enables Government security agents to track conversation of persons talking in secret places or where they think they are not guarded. The techniques of electronic surveillance doesn’t discriminate while in operation and they ends up recording all the human events instead of recording the treasonable, espionage or criminal related activities. Thus anyone who speaks over a telephone that is tapped or one who speaks while in a room that is bugged is recorded. The warrantless electronic surveillance by the government usually invades and intrigues the civil liberties of the Average citizens of the United States of America as it is conducted without logical approaches.

Gathering the security intelligence usually involves a lot of time and resources are used for instance the government uses a lot of money paying the security staff that are involved in the surveillance process and also uses some extra cash in mounting the surveillance cameras.

The entire electronic surveillance program is usually not a transparent one and the whole issue about the program has been met with mixed reactions between the individuals and firms on one hand and the government on the other hand. Civil libertarians wants the government to be clear and transparent about the program while the private individuals wants the programs to be opaque and thus there is no co consensus on the program as people and government hide from each other. Both the people as well as the government pose good as well as bad reasons as to why they hide from each other. The true sense of matter is that complete transparency usually paralyzes both action and planning while complete transparency have the effect of endangering both the security and the liberty as terrorists knows this very well (Richard 154).

Case for Warrantless Electronic Surveillance according to Polsner

Richard Posner (248) in his analysis of Warrantless electronic surveillance reveals that there is a great voluntary disclosure of personal information in such situations as owning a driving license where one must disclose some of his or her personal information. Driving being considered as a necessity among the majority American adults, their information is always disclosed to the vehicle bureaus so as to obtain a valid driving license. The same applies to students whereby, they reveal their information voluntarily to the potential employer. One must reveal his or her personal information so as to get a life and health insurance, a well paying job, a bank loan, credit card among others. Thus one’s information is easily recorded and so the surveillance is voluntary as no one is forced whatsoever to reveal his or her information and the personal needs renders one to reveal his or her personal information unconsciously.

According to Richard’s article (249), advancement in technology has enabled the digitization of information and so large volumes of private information can be stored at little cost and also the information can be searched and retrieved when needed. With digitization, the private information of the American citizens is readily available to the security agents and this makes it possible to deal with terrorists as well as their sympathizers.

The article by Richard (249) reveals that the information concerning employees in an organization is very useful as it can be used by another organization once an employee leaves the organization and joins another one. The new employer may gather personal information about an employee so as to know the reason as to why the employee left the organization.

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Richard Posner in his article reveals that there are those surveillance that are deemed as reasonable i.e. if a given type of surveillance is deemed to be within the Fourth Amendment as the search is only permissible once the conduct is deemed to be reasonable. The reasonableness however of a Warrantless search is usually determined through some balancing tests which weigh the extent of intrusion of individual rights.

Richard Posner analysis of Warrantless electronic surveillance reveals that there are also some searches against persons who are suspected to be terrorists or threat against the citizens and country at large for instance, the government can conduct inspections of people within the United States without necessarily obtaining a warrant once the people are believed to have some criminal elements.

Conclusion

Following the analysis by Richard Polsner, the Warrantless Electronic surveillance is not an effective tool as far as a country’s security is concerned. The Warrantless electronic surveillance violates the privacy rights of the American citizens. The innocent American people’s dignity is lowered and they are also affected psychologically once they realize that their secrets have been leaked to others.

It has been proved that modernity cannot be negotiated without continuously disclosing personal information. The new culture that is associated with transparency has inflicted a lot of harm on Americans as a result of disclosing their personal information. The Americans thus have been cautious about the information that they reveal and this has seen a radical diminish of informational privacy (Richard, 250).

As privacy remains to be the best friend of terrorists, the article by Polsner has revealed that the technological advancement has enhanced terrorism as terrorists have gained vast amount of information of innocent Americans by making data mining to be feasible. Internet has been a powerful tool as far as the conspiracy of personal information is concerned.

The Terrorist Surveillance Program by the NSA has been revealed to be a controversial one because it goes beyond the FISA boundaries by conducting the Warrantless electronic surveillance. The search sequence i.e. the interception, then the data mining and finally the human search concerning the intercepted messages have been suspicious. Also, the recent amendments concerning Warrantless searches are only temporary and are poorly designed and unclear.

Gathering the security intelligence usually involves a lot of time and resources, for instance the government uses a lot of money paying the security staff that are involved in the surveillance process and also uses some extra cash in mounting the surveillance cameras.

Some of the searches are illegal as well as unconstitutional as they violate the Fourth Amendments because they don’t specify those things that need to be seized or searched. The government does not focus on a specific area and this causes some ambiguity. People are however worried why searches that are aimed at collecting information about individuals living outside the United States ends up gathering information on the Americans.

The techniques of electronic surveillance doesn’t discriminate while in operation and they ends up recording all the human events instead of recording the treasonable, espionage or criminal related activities. Warrantless electronic surveillance by the government usually invades and intrigues the civil liberties of the Average citizens of the United States of America as it is conducted without logical approaches. The Fourth Amendment supports that the rights of the people is free from unreasonable searches with the proper use of warrantless electronic surveillance technology and there will be no conflict between the technology and people’s rights.

However, the American citizens don’t have authority to prohibit the government from carrying out the Warrantless electronic surveillance at any rate but they should not allow their privacy rights that are contained in the constitution to be violated and instead they should use cryptography as far as their network is concerned and this will help to shield their information the same way the European Parliament advised their citizens to practice.

References

Inc Icon Group International (IIGI). Jennifer: Webster’s Quotations, Facts and Phrases. San Diego: Icon Group International, 2008.P.167.

Micheal, Tiger. Thinking about terrorism: the threat to civil liberties in times of national emergency. Chicago: American Bar Association, 2007.P.15.

O’Brien, David. Constitutional Law and Politics. New York: W.W. Norton & Company, 2008.p22.

Richard, Posner. SURVEILLANCE: Privacy, Surveillance, and Law. Chicago:University of Chicago, 2008

Taslitz, Andrew. Reconstructing the Fourth Amendment history of search and seizure. New York: NYU Press, 2006.P.31.

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