Every few years the US Patriot Act pops back into our collective memory as Congress debates its merits and votes on its extensions amid a world faced with growing hostility. Most of us do not think about the millions of encryptions sent to servers in the deserts of the Southwest that whistleblower Edward Snowden revealed or believe that our digital patterns will be of interest to anyone outside of our own social circles. Yet at watershed moments such as the Department of Justice’s case against Apple, a brief reflection on our nation’s history of domestic surveillance is necessary.
In 1975, the Church Committee revealed the extent of the FBI’s then-director J. Edgar Hoover’s infamous domestic espionage program initiated at the height of the McCarthy era. Faced with growing concern over surveillance issues, President Gerald R. Ford soon signed the Foreign Intelligence Surveillance Act (FISA), which created a federal investigative board meant to curb counterintelligence abuses and provide oversight for domestic espionage programs. The board was meant to be a panel of government officials that would oversee surveillance activity and hear complaints of wrongdoing, much like a human resources department. However this perfunctory, and somewhat utopian, construction of an advisory board under its own umbrella of government was a recipe for disaster.
The Fourth Amendment protects ordinary citizens from the government’s encroachment, but it is difficult to determine whether citizens’ rights have been respected given agencies’ cloak of secrecy. FISA courts are self-governing and do not answer to the public nor to government officials elected to oversee such programs; they answer only to themselves.
The government’s right to engage in surveillance of citizens has expanded greatly since the passage of the Patriot Act, and it is highly contested, but most people have only a vague understanding of the issues. The subject of spies and espionage is fascinating and highly entertaining. The James Bond franchise alone is proof of that. But when espionage means metadata and sophisticated web coding instead of a shootout atop a moving train, we tend to scratch our heads and shrug our shoulders.
In 2015 a federal appeals court ruled Stellar Wind to be illegal, citing its egregious use of the Patriot Act’s extensive protections. Stellar Wind was a program that performed data collection without warrants. The decision came just before Congress was set to vote on the Patriot Act’s extension. Though the Act’s extension passed nearly unanimously, the Senate added provisions requiring reform of the electronic data collection program, though it specified no particular plan for reform.
In response, Senate Majority leader Mitch McConnell introduced and passed the USA Freedom Act 2015, which holds cellular companies responsible for storing data in the event government agencies like the NSA need access. Senator McConnell’s Act effectively eliminates the government’s holdings of personal metadata and seems like a logical means to provide the oversight necessary to comply with the court’s earlier decision. However it does not end the collection of private electronic data, rather it promotes private and public collaboration and creates even more complexities within the domestic surveillance netherworld.
The National Security Agency’s ability to tap into the electronic communiqué of suspected terrorists might seem like a positive implementation of domestic policy to many Americans. However, for decades the NSA has extended its efforts while limiting government and public oversight of its programs. In 2013, the New York Times reported the agency’s efforts to broaden its power over metadata collection citing the use of FISA courts as its main arbiter over possible Fourth Amendment violations.
It is difficult to determine exactly what is being collected when the data itself is indecipherable and the tools of interpretation are out of reach for most Americans. However, information on the government’s espionage programs is readily available and clearly understandable.
Basic searches on popular news sites like the New York Times or the Washington Post yield current information regarding the status of our privacy, how our information and data – sent and received – is being used, and to what extent, according to knowledgeable journalists, and civil rights activists.
Most citizens need not fear their privacy being compromised, but the stake here is larger than our individual concerns. It is the perpetuation of laws that shield surveillance agencies from oversight and their refusal to answer to the American people about where our data is going and how it is being used. Recently, a third-party collaborator hacked an Apple iPhone at the behest of the Department of Justice. The DOJ dropped their lawsuit requesting Apple’s cooperation and the private electronics company is now faced with the challenges of how to maintain the security its users depend on.
The fear of terrorism helps to promote the acceptance of these lax privacy standards. It will become increasingly easy for us to forfeit our electronic privacy by generalizing that nothing on the Internet is private and joke to our loved ones about being put on a list because we mentioned a certain tempestuous word in a text.
There is a certain validity in support of the DOJ’s hack, because in this instance valuable information for determining the patterns and motives of the San Bernandino attackers could be detailed in documents not only within the phone’s memory but throughout its multi-platform cloud accounts.
The Department of Justice case against Apple might have become a landmark court battle that established important precedence about metadata collection programs. It could have been a moment in American history to reevaluate the stock we place in individual privacy versus protection against terrorism. More importantly, it might have reigned in the undeniable power secretive government agencies have established for themselves in our modern, technological world. Instead, public debate continues. Though this particular moment in history will not be heard in a court of law, the Apple case is now being tried in the court of public opinion. We would do well to continue this debate in preparation for the inevitable next controversy that pits personal privacy against national security.
Megan is a senior earning a Bachelor of Arts in History. Her primary focus is modern American studies with an emphasis on US domestic policy and social history. Her research has included topics ranging from the effects of drone warfare to income inequality and the American Dream. Upon graduation she plans to move to Chicago to pursue a career in publishing and hopes to return to academia or attend law school in the near future.