Today governments conduct unprecedented warrantless mass surveillance on citizens at home and abroad. Because defenders of such policies cite reasons of national safety and the greater good of society, opponents are often labeled extreme or insane. Yet the Fourth Amendment to the US Constitution clearly affirms “the right of the people to be secure in their persons, papers, houses, and effects.” The landmark 1972 case United States v. U.S. District Court upheld Fourth Amendment requirements for domestic surveillance. The Founding Fathers wanted to ensure that general warrants like those of 18th-century England would never be legally issued in the US; however, nowadays such overbroad warrants have returned in new forms with new names and have eroded the civil liberties once enjoyed by Americans and foreigners alike.
Illegal, secret surveillance of the public is nothing new. The US began its first surveillance program during the Philippine-American War, compiling a database on Filipino rebel leaders. The program moved homeward to expand into President Wilson’s wartime security apparatus. In the Civil Rights and Vietnam War era, the Central Intelligence Agency (CIA) and Federal Bureau of Investigation (FBI) used Operation Chaos and Counter Intelligence Program (COINTELPRO) to track thousands of civil rights and antiwar activists. In 1978, President Carter signed the Foreign Intelligence Surveillance Act to establish a special court to oversee national security searches of foreign entities. The irony is that President Bush’s ‘War on Terror’ changed the Foreign Intelligence Surveillance Act (FISA) courts from a reformed system of oversight into a secret rubber stamp institution for government intrusion into the privacy of citizens. Whistleblower Edward Snowden’s continual disclosures shocked both US and foreign citizens. Recent revelations include FISA-approved court orders by the FBI for telecommunications corporations to collect metadata from customers and give them to the National Security Agency (NSA); blanket electronic surveillance; and the wiretapping of governments and citizens of Brazil, China, France, Germany and Spain; and attempts to discredit deemed radicals by publicizing their consumption of Internet pornography.
The surveillance state destroys fundamental American principles of individual liberty and privacy. The first argument made by proponents is that if one has nothing to hide, then one has nothing to fear. This assertion fails because the Founding Fathers envisioned certain protections from the government for law-abiding citizens. Just as citizens have the right to refuse a search by police, they retain the right to not be electronically tracked. If overreaching surveillance becomes the new normal, then future governments will install more, vaster programs; if citizens consent to a search, then police might examine their bodies’ orifices.
The second argument is national security. Advocates claim that surveillance prevents terrorism. But there is no concrete measure of safety. An experiment of two countries, one with and the other without surveillance, cannot be run. Perhaps safety is an abstract feeling of the populace. However, many citizens feel less safe due to their communications being constantly tracked and stored by untrustworthy governments.
The third argument is that the programs, even if repulsive, are technically legal. This argument is fatalistic. Congress passes many unconstitutional laws, but most of them are still enforced. The question is not of legality but morality. History shows that governments that possess extensive surveillance systems either are, or deteriorate into, oppressive, illiberal regimes: Nazi Germany, the Soviet Union and Maoist China all spied on their population with secret police.
Another argument is that secret surveillance gives a nation an advantage in diplomacy. This can be true in times of war or political tension. But when a nation spies on an ally and its citizens, transnational trust is broken. President Obama struggled to justify the NSA’s blanket wiretapping to German Chancellor Angela Merkel and others. The European Union suspended talks for a free trade deal with the US; Brazil publicly reprimanded the practice. Throughout the world people are becoming more unsettled that the US and their own governments are eavesdropping on their private lives.
Unconstitutional surveillance is a bipartisan problem. To effect reform, a new generation of citizens and policymakers must learn the history and purpose of the surveillance apparatus and take action. A new president could issue executive orders to abolish the NSA. Congress could sponsor new legislation not to provide exceptions to the Constitution but to restore protection to the people. The judiciary could strike down warrantless surveillance and uphold the Fourth Amendment. Citizens should use encrypted communications like Lavabit and Silent Circle — provided the companies win current federal lawsuits. Other countries will follow America’s lead.
As pro-privacy statesmen dismantled President Wilson’s surveillance programs, Secretary of State Henry Stimson famously declared, “Gentlemen do not read each other’s mail.” It is unfortunate so few civil, moral leaders remain in government.