In June 2013, The Guardian, a British newspaper, wrote a series of articles that divulged information about the National Security Agency's (NSA) mass surveillance programs, including PRISM. The articles were based on documents leaked to them by NSA contractor, Edward Snowden, revealing that the NSA was conducting a series of surveillance programs with the help of nine large Internet companies (MacAskill). PRISM, one of the main surveillance programs at the time, gave the NSA direct access to Americans' phone and Internet data (Donohue). Snowden's files resurfaced the issue of government surveillance that the U.S. had been battling since the Bush administration. With the broadness of U.S. legislation, it is impossible to ensure that Americans can avoid being monitored; they have begun self-censoring as the chilling effect instills the fear of being punished. As the protection of First Amendment rights becomes ambiguous, it is necessary for the government to increase transparency and accountability. The NSA has repeatedly defied Americans' First Amendment rights by placing them under surveillance, resulting in the chill of free speech (Elkin & Haber). Considering the NSA's discreetness regarding surveillance programs, Americans have just been informed about their actions through the confessions of several whistleblowers, more specifically Edward Snowden. In 2007, Snowden began his disposition after being stationed in Geneva as a cybersecurity expert for the CIA. From that point up until his disclosures in June 2013, he had been collecting over 7,000 NSA documents, containing information about several global surveillance programs (Gellman).
Prior to The Guardian published the articles, Snowden took a flight to Hong Kong in order to be with his private lawyer (Gidda); one month later, the documents were revealed. Snowden's provided his explanation for the disclosures in one of the articles, declaring "I'm willing to sacrifice all of that because I can't in good conscience allow the U.S. government to destroy privacy, Internet freedom and basic liberties for people around the world with this massive surveillance machine they're secretly building" (Singletary). Fortunately, Snowden has been able to seek asylum in Russia, however, there have been several other NSA whistleblowers who were unable to reach the same level of achievement. Several years before Snowden's expos?©, Thomas Drake, a senior executive at the NSA from 2001-2008, exposed the injustice he saw within the NSA and attempted to take legal action (Mayer). According to Drake, the NSA had been developing two Internet surveillance programs called, Thin Thread" and "Trailblazer." Both were considered overbudget, yet Drake sided with Thin Thread as its cost was much lower than that of Trailblazer and did not involve the infraction of Americans' right to privacy (Mayer). Unfortunately, the majority, including Michael Hayden, chose to pursue Trailblazer; this marked the beginning of Drake's skepticism surrounding the NSA. He proceeded to take action on the issue by reporting it to the Department of Defense and the NSA Inspector General, yet, no serious actions were taken. In 2007, Drake was one of several NSA employees raided by the FBI under the suspicion that he was withholding information from the NSA and disclosing it to various news outlets (Mayer). Drake's career with the NSA continued to decline as he was charged with obstructing justice and lying to law enforcement officials, along with endangering Americans lives. In 2011, all charges against Drake were dropped. After viewing the NSA's abuse of power and disregard for Americans' free speech rights, it becomes more apparent that transparency and accountability need be implemented in the U.S. government.
Although NSA surveillance mainly concerns the Fourth Amendment, the most overlooked issue in regard to mass surveillance is the protection of free speech under the First Amendment (Reitman). It may seem as though the protection of Fourth Amendment rights would essentially protect First Amendment right, however, there are inconspicuous effects that are often neglected. For instance, the chilling effect is the most significant consequence of the unconstitutional interpretations of the Foreign Intelligence Surveillance Act (FISA). Dr. Sunny Skye Hughes, a virtual communications professor at the University of Florida and Santa Fe College, states that the chilling effect occurs when government action deters conduct or speech that might have 'genuine social utility' to promote the rational exploration of political ideas, (Hughes). She explains that the government does not always physically restrict speech, but certain actions may implement fear in individuals, deterring communication. Moreover, it can be developed through a four-part process. The chilling effect is first initiated by a government action that appears to threaten an individual's First Amendment rights. Secondly, government action chills a social activity involving expression or communication. After, the government creates a punishment that can potentially affect the individual if they participate in social activity. The final step of the process causes the individual to limit their communication and/or damage their reputation. The chilling effect induced by NSA surveillance is first seen and noted in the Supreme Court case, Gibson v. Florida Legislative Investigation Committee. After the Supreme Court ruled that segregated schools were unconstitutional in Brown v. Board of Education, the National Association for the Advancement of Colored People (NAACP) was criticized by state legislators for urging the termination of segregation laws (Oyez). Subsequently, the Florida Legislative Investigation Committee was created in 1959, and within the same year, they summoned Theodore R. Gibson, the president of the Miami branch of the NAACP, and asked him to generate a list detailing the members of the organization; Gibson refused to reveal any information about the members (Justia Law) and was consequently found in contempt. The case was taken to the Supreme Court, but it was quickly reversed for the reason that the committee was overstepping boundaries and violating Gibson's First and Fourteenth amendment rights.
Furthermore, Justice Goldberg coined the term chilling effect, stating, Where the challenged privacy is that of persons espousing beliefs already unpopular with their neighbors and the deterrent and 'chilling' effect on the free exercise of constitutionally rights of free speech, expression, and association is consequently the more immediate and substantial (Bosmajian). Fortunately for the NAACP, the Supreme Court was able to identify the chilling effect, however, this gradually became more difficult in future cases. On January 17, 2006, the American Civil Liberties Union (ACLU) filed a lawsuit against the NSA, stating that their rights to free speech and association under the First Amendment were being compromised by the TSP. The plaintiffs, who were attorneys, journalists, scholars, and national nonprofit organizations claimed that they were unable to interview sources and witnesses due to the warrantless Internet and phone surveillance practiced under the TSP. Their argument was based on the 1971 Laird v. Tatum case in which the petitioners claimed that they were victims of the chilling effect brought upon by the U.S. Army's surveillance program. By August 17, Judge Anna Diggs Taylor ruled that the TSP violated First and Fourth Amendment rights and declared it unconstitutional (Hughes). Despite succeeding during this stage of their battle, the ACLU returned to the Sixth Circuit Court of Appeals to restate their claim. Unfortunately, the case was soon dismissed as the ACLU could not prove that they had been victims of wiretapping by the NSA (ACLU.org). Several years later, in 2013, a similar case arose to challenge the chilling effect of domestic surveillance. In the court case, Clapper v. Amnesty International USA, the plaintiffs included journalists, attorneys, and human rights organizations, who were communicating with alleged terrorism suspects. The plaintiffs filed a lawsuit in response to the FISA, arguing that the act violated the First and Fourth Amendment. They feared that the U.S. government would monitor their discussions with the alleged terrorism suspects, ultimately injuring their professional and economic status (Hughes). Since the plaintiffs were able to explicitly show that the chilling effects were caused by FISA, the federal appeals court ruled in favor of Clapper.
In order to address the issues of NSA surveillance on American's privacy rights, some have made the argument that the U.S. government needs to limit the scope of their surveillance programs. For instance, in June 2013, Senator Rand Paul of Kentucky attempted to create a solution through the Fourth Amendment Restoration Act. This bill outlined what the NSA had power over, which would restrict them to only surveillance with a warrant and probable cause as stated in the Fourth Amendment (Paul). Previously, the NSA was allowed to surveillance foreigners, as well as Americans in contact with those individuals, under the Terrorist Surveillance Program (Elkin & Haber). The bill also chronicled the NSA's discreet collection of Americans' telephone records and communication data. Furthermore, the bill indicated, The collection of citizen's phone records is a violation of the natural rights of every man and woman in the United States, and a clear violation of the explicit language of the highest law of the land, (Paul). Although the bill summarized the NSA's violation of American's rights through broad legislation, it was discarded for the reason that Senator Paul's bill would repeal the Patriot Act and FISA (Richardson). Senator Rand Paul's bill was a step forward in establishing a solution to the issue, but it did not address U.S. citizens' privacy rights; this is an essential aspect in protecting Americans against the chilling effect. Initially, Senator Paul's bill intended to protect these rights, yet he altered the bill's objective to restore the Fourth Amendment, disregarding the risk of American's rights (Siddiqui). Moreover, Senator Paul's decision to repeal the Patriot Act and FISA is not something Congress is prepared to give up. Other members of the Senate have also made an attempt to protect American's First Amendment rights from government surveillance. Similarly to Senator Paul, Senator Patrick Leahy introduced the FISA Accountability and Privacy Protection Act to Congress after witnessing Snowden's disclosures. The bill describes a number of actions the government must take in order to be held accountable for their how they control surveillance programs.
These measures include: reporting the adequacy of said surveillance programs, assessing the effectiveness of these procedures, reporting the number of National Security Letters (NSL), and reporting to the Judiciary Committee annually about the programs' impact on privacy (Richardson). In addition, this bill sets back FISA and reverts a number of NSLs back to the standards before the Patriot Act by June 2015 (Leahy). Senator Paul sets a solid foundation for a potential solution to the issue intruding government surveillance; unfortunately, the bill was also discarded when Congress voted on renewing FISA. Though the dismissal of these bills seemed to put an end to any possibilities of protecting Americans' privacy, President Barack Obama would eventually develop his own solution. On June 3, 2015, President Obama signed the USA Freedom Act, which was created to reach three valuble goals: to protect civil liberties, improve transparency, and strengthen national security. Under the civil liberties category, the law ensures the end of bulk data collection as stated in section 215 of the Patriot Act and FISA (Congressional Digest). As for improving transparency, the FISA Court will consist of an expert panel that will be able to ensure that the surveillance programs will not infringe upon American's First Amendment rights. In order to enhance national security, a new call record programs will be established and monitored by the FISA Court (Congressional Digest). Overall, the Freedom Act appears to be a foolproof method of narrowing government surveillance and protecting privacy rights, however, the act has criticized for being inadequate in its approach. The primary issue with the Freedom Act is that it does not truly ensure government transparency. According to the Freedom Act, the FISA Court will serve as a panel that guarantees government transparency (Congressional Digest). In contrast, the FISA Court's rules indicate that hearings 'must be ex parte and conducted within the Court's secure facility,' which is accessible only by individuals with the appropriate security clearance (Berman). With these rules in place, the purpose of the Freedom Act becomes futile.
Furthermore, the lack of accountability increases the inefficiency of the FISA Court by allowing them to disregard transparency completely. To protect First Amendment rights from mass surveillance, it is important for the U.S. government to emphasize transparency as well as accountability; the two must go hand in hand. In the article, Information Accountability, Daniel J. Weitzner defines accountability as the use of information should be transparent so it is possible to determine whether a particular use is appropriate under a given set of rules and that the system enables individuals and institutions to be held accountable for misuse. The issue with transparency found in the Freedom Act is a prime example of what can occur if legislators only advocate for transparency without accountability. While the U.S. government needs to be more transparent about what NSA surveillance entails, it is just as critical for the NSA to be held accountable for their actions. Though the intent of transparency and accountability is to protect Americans' rights, various government officials believe that the outcome of this solution will risk national security arguing that transparency can threaten an individual's security by making their information public (Lessig). In an interview, General Hayden states, Suspicionless surveillance' doesn't make sense. I'm not a law enforcement officer. I don't suspect anybody; I'm collecting information to keep the country safe.
NSA doesn't just listen to 'bad' people...your privacy is simply not the concern of the NSA director, (Cayford & Pieters). General Hayden's remark on individual privacy highlights the general consensus of proponents of NSA surveillance; many believe that in the time of a national emergency, individual privacy must be surrendered for national security (Goud). For instance, the Pew Research Center conducted a study surrounding Americans' views on the effectiveness of anti-terrorism policies; the results indicated that More (49%) say [that anti-terrorism policies have not gone far enough to adequately protect them and] this is their bigger concern than say they are concerned that policies have gone too far in restricting the average person's civil liberties (37%) (Gao). Other opponents of government accountability believe that this solution will prove to be ineffective; their main concern is that if the process to achieve accountability is weak or improper, then it can result in an unclear understanding of who is responsible, or the loss of accountability altogether (Lessig). Although no solution is perfect, it is evident that without transparency and accountability, Americans' rights are more at risk. The primary concern with Moreover, the NSA needs to significantly narrow the range of mass surveillance and data collection; rather than monitoring all individuals outside the U.S., there should be a guideline of what deems a person suspicious and a risk to national security. Most importantly, policymakers need to define the extent to which national security and individual privacy limit each other. With those modifications in mind, it is likely that the chilling effect can be eliminated completely.
Cite this page