The startling revelations which originate from the disclosures made by Edward Snowden, a U.S. government contractor, made it clear that the extent of surveillance over ordinary citizens was being conducted in a systematic way with little or no legal constraints and has triggered a national debate on the ethics and legality of the vast monitoring systems which are employed by the National Security Agency in the name of protecting the people of the United States from foreign threats.
The President moved quickly in a attempt to defend the legality and the necessity of the programs on the basis of their ability to assist in the enhancement of national security. Also, the head of the National Security Agency defended the programs saying that the surveillance is used to prevent attacks against Americans and that they are not directed at people living in the United States. He also downplayed the extent of the operation of the system saying that although it does monitor telecommunications providers across the country this is not systematic and is sanctioned by the Foreign Intelligence Surveillance Act Court.
In a video posted by Snowden on YouTube he specifically highlights in his comments the extent to which the system is capable of measuring, categorising and organising raw data about the internet and phone usage of millions and millions of people and that this systematic monitoring is a threat to the fabric of a democratic society. Snowden explains his actions by saying that he doesn’t wish to live in a society where people’s behaviour is under such completely powerful surveillance that can be used to create a case in the media against almost any individual. Snowden said that the system was capable of placing anyone in the country under surveillance including federal judges, agency directors and the president.
The disclosures have raised a debate about whether such surveillance is even legally given the range of constitutionally protected rights which should be available to everyone in the United States. The constitution protects citizens from unwarranted searches and seizures and guarantees the privacy of a person’s beliefs. Perhaps the most important constitutional guarantee is the fourteenth amendment right to liberty which have been interpreted broadly in a number of decisions of the United States Supreme Court to mean that citizens have a broad right to privacy. The cases of Myer v Nebraska (1923), Griswold v Connecticut (1965) and Stanley v Georgia (1969) have resoundingly affirmed the broad application of the doctrine as applying to right to decide the education of ones children, the right to contraceptives and viewing pornography respectively. In each case the court held that there was no basis for a state law infringing this broad right of privacy found in the federal constitution.
It is surely possible that a legal argument along these lines can be raised questioning the constitutional basis of the laws allowing these surveillance programs. For this reason, it appears to be likely that a number of human rights and civil liberties groups will seek to challenge the surveillance systems on these grounds.
By David Coleman
Privately practising lawyer – Concerned for the State of the Rights of Privacy in America