ALM Properties, Inc.
Page printed from: The Recorder
Select 'Print' in your browser menu to print this document.
Viewpoint: PRISM Should Have Us All Concerned
2013-07-12 10:55:51 AM
Polls suggest that many Americans are not that concerned about the National Security Agency's PRISM program. As the government has sought to shroud the program behind promises of foiled plots and pursuit of foreign terrorists, Americans seem to have concluded that the program will not affect them. But while many details about the process are still classified and subject to speculation, one only need to look at the government's interpretation of existing law and regulation to conclude that PRISM can have unintended consequences for your average American. In fact, when combined with already existing legal precedent, PRISM legalizes the use of our private lives against us.
According to James Clapper, the director of National Intelligence, the program's legal justification is based on an interpretation of §702 of the Foreign Intelligence Surveillance Act. That law is designed to facilitate the acquisition of foreign intelligence information concerning non-Americans, and as the NSA recently announced, cannot be used to intentionally target any U.S. citizen. But as a number of lawmakers with classified knowledge of the subject have confirmed, this characterization is misleadingly incomplete (http://goo.gl/kXNVU).
While §702 of FISA, and the FISA generally, does not actually provide any direct justification for the surveillance of electronic communications of Americans, Americans' communications have been monitored already under a view that the broader goal of the surveillance is directed at terrorists abroad. This reading of an already overbroad statute allows for government surveillance of individuals deemed suspect and anyone they are connected to, no matter how indirectly, whether they are American or not — all without the standard requirements of a warrant and all under a classified veil of secrecy (http://goo.gl/IGrqN).
Many Americans may nevertheless be taking the view that if they have done nothing wrong, they have no reason to be concerned. This is an overly simplistic view on the reach of the PRISM program, and one that relies on trust in the discretion of law enforcement agencies in lieu of constitutional protection. Regardless of the stated intentions of the government to use private data in relation to terrorism only, there is no constitutional or legal requirement that this be the case. Unlike when a hacker or foreign government obtains information illegally, any information obtained by PRISM can ultimately be used against the individual in question with impunity in a court of law.
The Fourth Amendment is designed to protect against the illegal search and seizure of evidence, and a number of Supreme Court cases have sought to decide what is fair in a law enforcement agency's search for evidence. But the existing and well-established doctrine of "plain view" in the American legal system serves to make the PRISM program far more dangerous than most Americans are likely envisioning today. This doctrine allows, rather logically, a law enforcement officer to seize evidence that is found in plain view during a lawful observation. In the Supreme Court case of Washington v. Chrisman, the court held an officer who was legally in someone's dorm room and saw a roommate's marijuana in plain view could confiscate it and use it against the roommate as evidence (i.e., to press charges, as a tool in plea bargaining, to obtain more information against a third party, etc.).
In another Supreme Court case of Horton v. California, the court decided that so long as the evidence found was in plain view, finding the item in plain view did not have to be by accident. In other words, if the officer was lawfully in a given space, he could intentionally look for incriminating evidence that was clearly in sight, and did not have to inadvertently come across it. The real dividing line for constitutional protection is the space that the officer is standing in. If he is there legally, either because he has permission or a warrant, among other justifications, everything he finds is fair game.
The PRISM data rooms being compiled by the NSA are the equivalent of the dorm room in Washington v. Chrisman. If PRISM is deemed constitutional, the millions of emails and messages Americans send to friends online and their Google search strings can, as a result, be surveyed and used against them without oversight, since they are compiled under the color of law. Once in an inbox, just like in any other "space," any probable cause or suspicious activity can also be further pursued by law enforcement officials (even outside of the terrorism context). The program is not indifferent to a master key allowing law enforcement to enter our homes based on who we know or even our names.
Another way to explain the danger is the following: Regardless of what the government is looking for or claims it is looking for when it accesses this data, it has the right to use any lawfully acquired evidence against citizens for any reason. Nothing in the FISA legislation requires prosecutions related exclusively to terrorism based on information obtained with PRISM. Prosecutions, further monitoring or investigation, or any number of other tools can be used against an individual legally as a result. Since the classified nature of any use of the information eliminates oversight, the American citizen will have no part in the discussion about what conclusions are drawn on such information or who reviews it. Is this what the Fourth Amendment was intended to allow, or is PRISM unconstitutional?
The PRISM program is real and it affects every American. Evidence compiled from the program, in addition to having potentially foiled terrorist plots, may have already lead to the prosecution of individuals for reasons totally unrelated to terrorism, for the reasons outlined above. It may also lead one day to the similarly unrelated prosecution or blackmail of Americans, as law enforcement officials comb their lives with impunity (remember J. Edgar Hoover). With constitutional protection lacking, all will depend on the discretion and self-government of law enforcement agencies as they wield unprecedented powers (http://goo.gl/TM31g). The result of the program, simply put, has the potential to destroy privacy in America and the world. Whether the prevention of terrorism merits such a world is a matter of opinion; we should, however, all be concerned.
Ali Ezzatyar is a lawyer in San Francisco and the executive director of the Berkeley Program on Entrepreneurship and Development in the Middle East (bped.berkeley.edu).
The Recorder welcomes submissions to Viewpoint. Contact Vitaly Gashpar at email@example.com.