Surveillance and Ethics: The NSA Controversy

Government surveillance is not a new topic. Espionage is glamorized in movies and most people do not have objections to gathering information on those they consider to be the enemy, but the view on surveillance can change dramatically when you are the one who is under the microscope.

Ethics in the Communication Age: What are ethics? Are ethics and laws interchangeable and do they always support one another? Who were the parties involved in the NSA controversy? Who has the authority to determine if warrantless surveillance is justified? Do public safety and the greater good override personal privacy? To what extent can the government go with surveillance? How much can private business be required to participate in government surveillance? These questions have been debated for different matters, but recently the National Security Agency (NSA) surveillance program has been a forerunner for debate. The National Security Agency is an American organization that coordinates, directs, and performs specialized activities to protect U.S. government information systems and produce foreign signals intelligence information. The NSA is highly technical and is on the forefront of communications and data processing. It is also one of the most important centers of foreign language analysis and research within the government. September 11, 2001 changed many things in our country. One issue that arose from this was the debate over warrantless surveillance by the NSA. This program was put forth as an initiative for terrorist surveillance. The NSA is authorized by Executive (Presidential) order to monitor phone calls and other communication originating outside of the United States from parties with known or suspected ties to Al Queda to a recipient within the United States without a warrant even if the recipient of the communication is a U.S. citizen.

What are ethics? Ethics are defined as the study of right and wrong regarding human conduct. Specifically, an ethical theory known as relativism is what can be applied to this situation. Relativism denies the existence of universal moral norms and that right and wrong are relative to society, culture, or the individual. The debate is not whether known or suspected terrorists who are not United States citizens are being watched, but rather if a citizen's Constitutional rights are being violated, even if that citizen is part of a terrorist network.

Are ethics and legal rulings interchangeable and do they always support one another? Not necessarily. Laws are rules and regulations that are created by parties with the authority to enact these decisions. Laws can have loopholes and not all laws are considered fair or even right. Everything legal is not necessarily ethical and everything ethical is not necessarily legal. The outcome of the NSA surveillance controversy had more of a legal conclusion than an answer about its ethics. In August, 2007 warrantless wiretaps were legalized.

Who were the parties involved in the NSA controversy? The President, the NSA, both the Republican and Democratic parties, the Attorney General, Congress, U.S. House of Representatives, various U.S. courts, the Foreign Intelligence Surveillance Court (FISC), the American Civil Liberties Union (ACLU), attorneys, private utility companies, and the general public were all involved either directly or indirectly. One of the most audible voices reacting to warrantless wiretaps was the ACLU. The ACLU was founded by Roger Baldwin, Crystal Eastman, and Albert DeSilver in 1920. The organization has more than 500,000 members and supporters. The mission the ACLU proposes for itself is to preserve all of the following protections and guarantees: Your First Amendment rights - freedom of speech, press, religion, assembly, and redress of the government. Your right to equal protection under the law - equal treatment regardless of race, sex, religion, or national origin. Your right to due process - fair treatment by the government whenever the loss of liberty or property is at stake. Your right to privacy - freedom from unwanted government intrusion into your personal and private affairs.

Who has the authority to determine if warrantless surveillance is justified? Under Article II of the Constitution the President is the Commander in Chief and can make military decisions. Congress also passed the Authorization for the Use of Military Force (AUMF) after the 9/11 attacks which authorized the President to use all necessary and appropriate force against nations, organizations, or persons that he determines planned, authoized, committed, and aided or harbored those involved in the September 11, 2001 terrorist attacks which may help to prevent any future acts of terrorism. Those opposed to the position that the President is subject to make this determination argue that Article I of the Constitution gives Congress the authority to make rules for the government and regulation of the land and Naval Forces and to make laws regarding military and wartime issues

Do public safety and the greater good override personal privacy? Determining what should be done whenever there is a policy vacuum is the reason James H. Moore states for studying ethics in application to technology. Ethics have not always remained in tandem with technology or time. This controversy revolves around whether the warrantless surveillance taps violate the 1978 Foreign Intelligence Surveillance Act (FISA), which permits the President or his delegates to authorize warrantless surveillance for the collection of foreign intelligence is there is no substantial liklihood the surveillance will acquire the contents of any communication to which a United States person is party. The President and his administration argued the stance that since the communication originated from a foreign location and from a non-citizen that this was collection of foreign intelligence regardless of the recipient, therefore it was not a violation of FISA. Another position of those opposed to warrantless wiretaps is that the NSA surveillance is an infringement of the Fourth Amendment of no illegal search and seizure.

To what extent can the government go with surveillance? Little technological information is known about the NSA wiretaps. It would be considered a breach of national security to reveal the technology currently being employed. Other surveillance programs have been used in the past and some of that technology can be used to garner an idea of what the NSA surveillance is capable of. One such program was called Echelon. The technology for Echelon was as follows: 1. One million inputs per half hour were generated. 2.Filters kept only 6,500 out of the one million inputs. 3. One thousand inputs that met criteria such as keywords were forwarded. 4. From the forwarded 1,000, ten were selected by analysts. 5. Out of the ten selected, one report was made. Visit www.heise.de/tp/r4/artikel/6/6929/1.html for mor information on Echelon. If the technology for the NSA surveillance is superior to Echelon, as one can assume it to be, then what exactly is it capable of? Even though it was decided that warrantless wiretaps were legal for this situation, this is where the subject of ethics enters. Would as many people consider this to be a violation of privacy if the potential for misuse and abuse were not present? If the strict guarantee that monitoring would only be used for the intended purpose of national security then the fear over privacy infringement may not be as great. Unfortunately, those with power cannot always be counted on to adhere to guarantees or do what would be considered ethical, even if what they are doing falls within legal parameters. A situation that highlights this possible misuse is a case pertaining to an appeal filed by two Albany, New York men who were convicted of criminal charges in an FBI anti-terrorist operation. They filed the appeal on the grounds they allegedly had evidence that informtion obtained by the NSA wiretaps was used in their conviction, but was not made public at their trial or handed over when their attorney requested it during discovery.

How much can private business be expected to participate in government surveillance? Executive Director Anthony D. Romero of the ACLU said: "We cannot sit by while the government and the phone companies collude in this massive, illegal, and fundamentally un- American invasion of our privacy and unfortunately, we cannot wait for Congress to act.  The ACLU is mobilizing its members and supporters nationwide to demand investigations into this shocking breach of trust.  And we are asking the FCC to use its authority to uncover the facts about how far the President's illegal spying game has gone.  The American people want answers." Three major telecommunications companies, AT&T, BellSouth, and Verizon have cooperated with the NSA in an effort to collect calling informtion on American citizens. AT&T customers claimed they had been damaged by AT&T's cooperation with the NSA. AT&T supposedly allowed the NSA to intercept and analyze communications along with performing data mining functions from within the same building as AT&T in San Francisco. Companies such as Cingular Wireless, Comcast, Cox Communications, Sprint, Nextell, and T-Mobile all claimed they had not turned over any information to the NSA wiothout being required to by law. In response to feeling AT&T violated federal laws where it could be considered criminal for any person or company to aid in the interception of any wire, oral, or electronic communications unless specifically authoorized by law, the Electronic Frontier Foundation, a San Francisco civil liberties organization sued AT&T.

Ethics can be debated in many various forms. Even though warrantless surveillance was decided to be legal, the question of it being ethical has not yet been answered and likely will continue to be debated.