George F. Hildebrandt
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Government Mass Surveillance: A Myriad of Threats

Mass surveillance in the United States invokes too-close-to-home trepidation of a totalitarian "Big Brother" surveillance state. For most people, the inescapable surveillance state depicted in George Orwell's dystopian novel, Nineteen Eighty-Four, seemed just that -- a thing for novels. Times have changed. Riding on the coat tails of the September 11, 2001 tragedy, the National Security Agency has expanded its mass surveillance efforts including the tracking of calls of millions of Americans and spying on calls, text messages, and e-mails. The government's surveillance programs receive authorization under a variety of laws, but two major players are the Patriot Act and the FISA Amendments Act.

As our world becomes technologically more complex, devices that are seemingly practical for ordinary consumer use double down as mechanisms for information gathering for our government. Government surveillance is a direct threat to our personal liberties, including our First Amendment right to free speech and association and our Fourth Amendment privacy rights prohibiting unreasonable searches and seizures.

One Lawsuit in a Sea of Litigation: Jewel v. NSA

Jewel v. NSA is a lawsuit that was filed in 2008 by the Electronic Frontier Foundation -- a nonprofit civil liberties organization - whereby the EFF is suing the NSA and other government agencies on behalf of AT&T customers to halt illegal, unconstitutional, and progressing dragnet surveillance of their communications and associated records. EFF reports that the lawsuit "arises from the untargeted, warrantless surveillance of millions of ordinary Americans" as contrasted to lawsuits by the American Civil Liberties Union that challenge targeted warrantless surveillance of specific persons.

In a recent ruling, a federal court for the Northern District of California sided with the U.S. Department of Justice, claiming that the plaintiffs could not win a major part of the case - a Fourth Amendment challenge to the NSA's copying of Internet traffic from the Internet backbone - without exposing classified information that would harm national security. The court reasoned that the publicly-available evidence offered by the plaintiffs did not provide a "sufficient factual basis to find they [Plaintiffs] have standing to sue under the Fourth Amendment regarding the possible interception of their Internet communications." The court also stated that even if the Plaintiffs could prove they were entitled to standing, a Fourth Amendment claim would have to be dismissed on the grounds that the government's defenses would require the impermissible disclosure of state secrets. The so called "state secrets" privilege permits judges to ignore evidence that would endanger national security if released to the public.

Judge White did not rule on the legality or constitutionality of NSA mass Internet surveillance. The Jewel case will proceed forward with its remaining claims, including other surveillance programs that acquire mass telephone call records.

Mass Surveillance: What is at Stake?

A Harvard Law Review article titled "The Dangers of Surveillance" by Neil M. Richards provides a compelling account of what exactly is at stake for ordinary American citizens. Take for example how other governments have employed state surveillance to manipulate the behavior of their citizenry. Richards writes,"China has used Internet activity to detect and censor dissidents, and states resisting the Arab Spring uprisings have also keenly sought social media data in order to stem the tide of the revolts."

Unconstrained surveillance poses a major risk for abuse by the government. Richards makes a compelling argument for curtailing surveillance, including the risk that information gathered could later be used against citizens who are critical of government -- "A ... special harm that surveillance poses is its effect on the power dynamic between the watcher and the watched. This disparity creates the risk of a variety of harms, such as discrimination, coercion, and the threat of selective enforcement, where critics of the government can be prosecuted or blackmailed for wrongdoing unrelated to the purpose of the surveillance." Furthermore, ubiquitous surveillance can suppress the practice of our civil liberties by restricting us from "experiment with new, controversial, or deviant ideas."

Knowledge is power. So, now that you have a better idea of the ramifications of mass surveillance, you can better protect your rights. And if you happen to have an issue with law enforcement (whether or not it is a result of mass or targeted surveillance), you know a great criminal defense attorney who can ensure your rights are exercised to the maximum extent possible.

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