“You need the haystack to find the needle,” says General Keith Alexander, the director of the National Intelligence Agency. He offered this as a justification of the additional spying on Americans by the NSA that was revealed this weekend. It turns out that NSA spies have been gathering up information about people’s email and text contacts, without any suspicion of any particular crime. These searches and seizures have included information about the contacts of large numbers of American citizens living within U.S. borders.
If it were still the 1980s, the equivalent would be for military spies to systematically sneaking a look at Americans’ rolodexes, or our little black books.
The Fourth Amendment to the Constitution has a very different standard for searches and seizures by the U.S. federal government. It states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
It’s plain and simple. The Fourth Amendment requires that the government state specifically what it’s searching for and where it’s going to search for it – before any search begins. The Fourth Amendment makes it clear that government agents cannot conduct broad searches of people’s private information – our “papers” – in the hope that it might turn up some interesting information. General Alexander’s approach of seizing entire haystacks of information without having any clue of whether there are any needles of criminal behavior revealed in that information is unconstitutional.
The Obama Administration now claims that sending out electronic spy bots to rip through Americans’ contact records on the systems maintained by Google, Yahoo, Apple, Microsoft and other tech companies is legal because some part of the searches takes place on foreign soil. The Fourth Amendment, however, allows no such loopholes. The amendment protects the right of the people to be secure in their papers, without restriction of where those papers happen to be.
Under the spy regime started by George W. Bush and continued by Barack Obama, Americans have to presume that both the content and the metadata of all their electronic communications are being observed by the United States government. Yet, electronic communication has become the new standard. It’s no longer possible for many people to conduct their personal and professional lives without using electronic communications. So, we’re forced to subject ourselves to government scrutiny, under a system in which abuses are rampant – and Americans are learning to censor themselves accordingly, as the East Germans did under the gaze of the Stasi.
The security benefits of this Big Brother surveillance system remain unproven. Its corrosive effects are widely apparent.
For the time being, the Republicans and Democrats have distracted Americans from the NSA scandal with the drama of a government shutdown. The shutdown of our constitutional rights is much less tangible than the shutdown of government agencies. The genius of the NSA spying system is that it’s never in plain sight, though it’s something that we all may reasonably suspect is watching us at any moment.