BIG BROTHER HAS SOME ‘SPLAININ’ TO DO: Why Meta-Spying is Unnecessary, Ineffective, and Unconstitutional

There’s been a lot of confusion about the NSA Prism program and it’s time to put some of this confusion to rest. Let’s start with the premise for the data gathering.

Many of my friends have proposed that the NSA is just doing what it needs to do to keep us “safe.” Safe from what, exactly?

In 2011, the State Department issued its report on U.S. casualties, world wide, due to terrorist attacks; there were seventeen. Seventeen. WORLD WIDE. That included U.S. deaths in Afghanistan, Iraq, and all other theaters of war.

In the same year, the CDC (Center for Disease Control) reported that heart disease claimed the lives of 2.5 million Americans. Here is the breakdown of that report:

  • Death by heart disease – 35,000 times more likely than death by a terrorist attack for U.S. citizens
  • Death by cancer – 33,000 times more likely than death by a terrorist attack for U.S. citizens
  • Death by preventable medical error – 5,800 times more likely than death by a terrorist attack for U.S. citizens
  • Death by excessive alcohol use – 4,700 times more likely than death by a terrorist attack for U.S. citizens
  • Death by vehicular accidents – 1,900 times more likely than death by a terrorist attack for U.S. citizens
  • Death by suicide – 2,000 times more likely than death by a terrorist attack for U.S. citizens
  • Death by HIV/Syphilis – 450 times more likely than death by a terrorist attack for U.S. citizens
  • Death by anaphylactic shock – 12 times more likely than death by a terrorist attack for U.S. citizens

Anaphylactic shock, people. Do you know what that is? DEATH BY PEANUTS.

Some would argue that the low probability of death by a terrorist attack for U.S. citizens is due to the stellar job of the NSA and its Prism program, but that only begs the question – WHAT THE HECK HAPPENED IN THE BOSTON BOMBING?

President Vladimir Putin practically handed the Tsarnaev brothers to U.S. officials on a silver platter. The Russians warned the FBI about Tamerlan Tsarnaev, even gave them extensive intel on his connections; but after questioning Tamerlan and finding “nothing” on him, they allowed him to travel to Russia on an extended stay, after which he returned to the U.S. and well, unfortunately, the rest is history.

Michael Mukasey, President Bush’s last Attorney General, stated in the Wall Street Journal shortly after the attacks that

Tamerlan Tsarnaev was, “…the fifth person since 9/11 who has participated in terror attacks AFTER questioning by the FBI.”

The FIFTH. How does that happen? If the surveillance program were truly serving its purpose, how, exactly, were the Tsarnaev brothers able to do what they did?

Although the NSA budget is “classified information,” CNN Money reported in July of this year that the estimated funds going to the NSA approximated $10 billion, with an approximate $2 billion syphoned off to its Prism program. In light of the Boston Marathon Bombings, what are American tax payers getting for their $2 billion, exactly? The prevention of 17 American casualties world wide? Or what?

According to a piece in CNN Opinion written by Casey Oppenheim, the co-founder and co-CEO of Disconnect, a privacy and security software firm,

“American and British spies have gone into online fantasy games to snoop on players, and to see if any militants are communicating with each other dressed as elves or gnomes.”

Gamers are suspects now. Got it.

In the same article, we learned that The Washington Post reported that the NSA is

“Collecting billions of records a day to track the location of mobile phone users around the world.”

While, according to Mr. Oppenheim,

“The NSA hacked fiber-optic cables and infected 50,000 networks with malware.”

I see.

Let’s delve into the Constitutionality of all of this, shall we?

Proponents of the Prism program such as Karl Rove state that the Prism program is completely legal on the basis of the ruling in the Smith vs. Maryland Case of 1979, in which a Patricia McDonough of Baltimore, Maryland, was robbed and terrorized by a Mr. Michael Lee Smith after he had acquired her address and phone number. He called her and threatened her. He drove by her house. She wrote down his license plate number and reported everything to the authorities, which then proceeded to contact the phone company in order to bug his phone, without a warrant. Low and behold, he was calling her; and based on the evidence, they were able to make an arrest. In the court hearing, the judge determined that any information given to a third party, in this case the phone company, was not protected under the Fourth Amendment, because according to the earlier landmark case of Katz vs. United States of 1967,

“What a person knowingly exposes to the public … is not a subject of Fourth Amendment protection.”

Mr. Smith was prosecuted and jailed.

But how does this case against one man in which there was probable cause excuse the gathering of phone and internet records of millions of American citizens who have done nothing wrong? It doesn’t.

In 2004, a Mr. Antoine Jones, the owner of a northeast Washington, D.C., nightspot called ‘Levels’, was suspected of narcotic drug trafficking. The FBI and the Metropolitan Police Department task force of D.C. obtained a warrant for the use of a GPS tracking device on his vehicle, a Jeep Grand Cherokee, authorized for use within ten days of its issue. However, they tracked Jones’ vehicle for 28 days, violating the terms of the warrant, and gathered 2,000 pages of data which they then used to investigate, charge, and convict Jones of possession and conspiracy to distribute cocaine.

When Jones appealed the judgement based on the violation of the GPS warrant, the state once again conjured up the “reasonable expectation of privacy” test, arguing that nothing done in public, such as driving around, could possibly be protected under the Fourth Amendment; however, Supreme Court Justice Antonin Scalia deemed that the GPS tracking was indeed considered a ‘search,’ as Mr. Jones’ vehicle was considered PRIVATE PROPERTY. The Supreme Court ruled unanimously in favor of Mr. Jones.

Notably, Supreme Court Justice Sonia Sotomayor stated at the time that:

“It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks…I would not assume that all information  voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”

And that, in a nut shell, is what’s wrong with meta-spying. Are laptop, PCs, and mobile phones not to be considered “private property”? 

Judgments made pre-digital age cannot possibly pertain to activities post-digtal age. The ramification are too great. What are the economic consequences of having commerce, trade, and communication come to a halt because of fear that there is no privacy protection under the Fourth Amendment? Can the world market afford Big Brother?

Not according to the executive of the top 15 tech companies, including Facebook, Google, Apple, Yahoo, and Twitter, that held a face-to-face meeting with the present administration this past Tuesday, when they expressed their concern that the NSA’s meta-spying had compromised the trust of their users. Fear is bad for business. And besides, what is this meta-spying really preventing?

To quote Judge Richard J. Leon of the Federal District of Colombia this past Monday, when he ordered the government to stop collecting data on the personal calls and to destroy the phone records of the calling history of two plaintiffs in a case brought before him,

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.”

Two billion dollars a year. Indiscriminate invasion. Seventeen causalities a year. Fourth Amendment rights. What say you, America? Are we really willing to give up our collective freedom to prevent a minuscule threat? Are we really willing to allow the NSA to run its program with no oversight, with secret courts hidden from the view of those who fund it? Because if that is the case, I think the confusion runs much deeper than that about what the NSA is doing, and why.

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