Kurt Mitman | In government we trust?
Sorry to be Kurt | If you go to Penn, the NSA is probably reading your email — and you should care
September 5, 2013, 4:56 pm · Updated September 5, 2013, 11:27 pm·
Sorry to be Kurt
Ben Franklin famously remarked that those who trade freedom for safety deserve neither. Somewhere along the line — between shutting down Boston after the marathon bombing and the National Security Agency’s PRISM program — we seem to have lost our way.
Over the summer, through the leaks of Edward Snowden, the United States learned of a massive electronic surveillance program called PRISM.
We only have partial information as to how PRISM actually works, since the program details are classified and the leaks by Snowden only provide a partial picture.
Some reports suggest that PRISM enables the NSA to collect data directly from the servers of Google, Facebook, Microsoft and other online companies, but the truth is, we don’t know what exactly PRISM does.
What we do know is that not only does the Foreign Intelligence Surveillance Act allow the government to target foreign nationals and “persons reasonably believed to be located outside the United States,” but also that the NSA is capable of cracking most encryption online.
So as an American, I shouldn’t worry, right?
Not exactly. First, think about who you communicate with. More than an eighth of the undergraduates at Penn are international students and a significant fraction of the faculty is also foreign, meaning that under FISA, the government can track all their communications. I don’t particularly like the fact that my advisers or classmates can be legally spied on by the NSA just because they’re foreign nationals.
Further, a quick perusal of my Gmail and Gchat history over the past week reveals that about half of my communications are with persons either foreign or in foreign countries. What this means is that the NSA could be legally reading a significant fraction of the communication that I have, even though I’m not directly targeted.
Second, the only requirement is that the NSA reasonably believes that a person is overseas. What is the metric for reasonableness? We don’t know.
Even if the NSA is acting in a blatantly unreasonable fashion, it’s legally tricky to attack clandestine programs in court. In order to challenge a law like FISA, one has to demonstrate standing. Generally, this means you have to show that the law directly impacts you.
In most search and seizure cases — for example, a recent Supreme Court case about placing a GPS tracking device on a suspect’s car — it’s easy to prove that a person was impacted by the government’s actions. However, the law gets trickier when searches and seizures involve intangible items.
Earlier this year the Supreme Court ruled that Americans don’t have standing to challenge FISA because it “rests on a speculative chain of possibilities that does not establish that their potential injury is certainly impending or is fairly traceable.”
The Snowden leak may be starting to alleviate the standing issue. It was revealed that Verizon Wireless was turning over data to the NSA and as a Verizon Wireless customer, the American Civil Liberties Union is hoping now to be able to prove standing. We’ll see what the high court eventually rules.
Moreover, what is even the efficacy of such surveillance? It’s not like our enemies don’t know we’re trying to listen in. There’s a reason Osama bin Laden only communicated through couriers using USB drives for years.
Regardless of these issues, why aren’t the American people more bothered by all of this?
Is it that we trust the government not to spy on us — or not to do so inappropriately? Given that only 10 percent of Americans have “quite a lot” or a “great deal” of confidence in Congress, how can we trust it to do the morally right thing? I certainly don’t.
Maybe I’m jaded. Or maybe my experience living overseas, where people have substantially less freedom than in the United States, has made me more sensitive to the realities of ever-expanding government power. Talking to friends who grew up behind the Iron Curtain, who, like in Orwell’s “1984,” never felt like they could say what they really believed, gives me pause.
The complacency displayed by Americans almost troubles me more than the actions by our government. It’s time for us to stand up and demand that our freedoms are protected.
Kurt Mitman is a 7th-year economics doctoral student from McLean, Va. His email address is email@example.com. Follow him @SorryToBeKurt. “Sorry To Be Kurt” appears every Friday.