On July 16th, 2018, the world witnessed the incredible spectacle of U.S. President Donald Trump, in a joint press conference with Russian President Vladimir Putin, denying his own government’s intelligence assessment that Russia had interfered in the 2016 U.S. presidential election. Such a historically unprecedented action drew condemnation both from Democratic and some Republican politicians. Perhaps unsurprisingly, retired intelligence leaders were among the most virulent critics of the summit. Former CIA chief John Brennan labeled Trump’s action “treasonous.”

Many Trump supporters continue to believe his denials. Other voters are turned off altogether by the Democratic Party’s Russophobia and unconditional trust of the intelligence services. Acknowledging the significant evidence of these Russian actions, we still ought to ask—why has it come to this? How has mistrust in state institutions like the CIA and  the NSA increased to the point that Trump can blithely reject their work and—however tenuously—maintain political support?

Could it be because the same intelligence agencies that are now demanding public faith have been conducting their own illegal spying campaigns on the American people for the past two decades—and denying it? The relationship between government intelligence and the public has changed significantly since the 2013 revelation of the full scope of the National Security Agency’s collection of domestic telephone metadata, in leaks made by former NSA contractor Edward Snowden. Despite changes to the law in the aftermath of this scandal, the agency is still breaking the law by collecting the public’s metadata, although now it announces data purges when it discovers “errors” in its gathering algorithms.

U.S. citizens eagerly accepted expanded state surveillance powers in the name of homeland security after the September 11, 2001 attacks. The NSA scandal, however, was a significant step toward a broader disenchantment with intelligence agencies and unconstitutional government actions in general. Technological, social, and political shifts have both provided the NSA with more opportunities to track potential threats and 325 million US citizens alike, but also unwanted public scrutiny of its actions. Is there a way to reconcile democracy and security in twenty-first century communications and internet surveillance?

The Origins of the NSA

The NSA flew under the radar of mass culture for a long time. The other intelligence agencies conduct operations with operatives and recruited agents to collect human intelligence (“HUMINT”). The FBI seeks to enforce domestic federal laws, the CIA to obtain foreign intelligence on friends and foes alike. The NSA, by contrast, is dedicated to less-glamorous signals intelligence or “SIGINT”—intercepting and decrypting telecommunications. Spying has been an important part of statecraft for thousands of years, but SIGINT only really began to take off with the invention of the telegraph, and became a crucial strategic task during World War I.

The Army, Navy, and FBI independently developed SIGINT departments in the 1920s and ’30s, according to a research report by Kevin Scott, but began coordinating efforts during World War II. To prevent competition, the Army was assigned primacy over diplomatic intelligence, while the Navy concentrated solely on naval communications. The end of the war saw a simultaneous drop in the military budget and expansion of civilian agency interest in SIGINT, from the CIA and State Department, as Cold War tensions with Russia began. Military-only control proved its shortcomings in the Korean War, when the armed services were caught flat-footed, lacking prior experience with North Korea or Korean linguists. In response, President Truman created the NSA in 1952 under civilian control—in line with the trend toward civilian supremacy over the military during his administration, which also saw the creation of the Department of Defense and the National Security Council.

Recently declassified posters from the NSA via Government Attic.

NSA poster 4
NSA poster 4
nsa poster 3
nsa poster 3
NSA poster 2
NSA poster 2

The NSA’s predecessors and the NSA itself worked hard to maintain a veil of secrecy over their activities and even their existence. But this secrecy almost immediately permitted abuses. In 1945, a predecessor to the NSA engaged with the nation’s three biggest telegraph companies in “Project Shamrock” to provide it microfilmed copies of telegrams sent overseas by U.S. citizens. By most interpretations, this violated the Fourth Amendment’s ban on “unreasonable searches and seizures.” The NSA and these communications companies pushed the cutting edge of computer technology in the mid-twentieth century to search and catalogue these millions of documents. NSA posters from this era used in internal workplaces to motivate and remind staff of duties have recently been released by FOIA. Intended to be humorous or heartwarming, today they come off as creepy and arrogant—with an unspoken message that security can only be achieved by “Big Brother”-style unrestricted mass surveillance run by the intellectual elite.

The NSA’s illegal domestic spying programs were uncovered by the 1975 Church Committee and stopped with the passage of the Foreign Intelligence Surveillance Act in 1978. This was the direct response to public outrage over President Nixon’s abuse of surveillance to gain information on his political enemies. Although that outrage faded over time, the political discourse since the 2013 NSA scandal is a sign the public can mobilize opposition once again—even if it’s harder to focus that opposition in today’s world.

Does the 4th Amendment Protect Metadata?

The internet and smartphones have greatly expanded the scope of information the public makes available to its telecom service providers. Many of our most intimate personal choices about politics, healthcare, finances, and family are now encoded in our internet traffic. Our phones act as GPS trackers and potentially voice and video recorders that many people keep near their bodies at all time.

That’s why President Obama’s argument about the 2013 NSA revelations that the public shouldn’t worry because the state isn’t “listening to the content of people’s phone calls” rings hollow. The NSA focused its analysis on the “metadata” of calls—phone numbers, times, and durations of calls. Legal scholar Joseph Mornin highlights the many ways that this “abstract” data can actually reveal a great deal of private “content.” Calls, for example, to numbers of political parties, family planning centers, or anonymous whistleblower lines may reveal more than the conversations themselves.

The government’s original defense of its practice of case-by-case phone number collection for law enforcement in the 1970s was that “the Fourth Amendment does not prohibit the obtaining of information revealed to a third party”—i.e. the phone company. The secret Foreign Intelligence Surveillance Courts (created under the act) accepted this argument in permitting the mass collection of metadata after 9/11. However, Mornin argues, newer Supreme Court opinions have indicated a shift in the court’s view that long-term bulk metadata reveals a mosaic of information that could be analyzed in ways that illegally infringe the privacy protected in the Fourth Amendment. However, these opinions have not yet been tested on the NSA itself.

Such narrowly legal definitions of the problem of widespread metadata surveillance are vulnerable to critiques by proponents of U.S. unilateralism and “necessity” in a state of emergency. Michael Hayden, director of the NSA from 1999-2005 and CIA from 2006-2009, came to the agency’s defense after the 2013 scandal, arguing for the legality and rightness of the surveillance program. Despite some concessions that the agency needs to curtail its mass surveillance approach in some areas to prevent bad PR, he also bluntly wrote, “Let’s be clear. Espionage is an accepted international practice and the U.S. Constitution’s Fourth Amendment protection against unreasonable search is not an international treaty.” This is a sufficient reminder that Russia is not the only country in the world that seeks to hack rivals’ computers and influence their elections.

Holding the State and Corporations Accountable

Sociologist/criminologists Laura Finley and Luigi Esposito take their criticism of NSA metadata collection beyond the fine points of constitutional law. They believe the NSA operates in secrecy and violates the public’s right to privacy in violation of international human rights treaties. It also damages democracy, they claim, by seeking draconian punishment for whistleblowers, which has a chilling effect on public discourse about government abuses.

They see this operation in particular as a form of state-corporate crime, in which the NSA, private telecommunications companies, and security contractors such as Booz Allen Hamilton (for which Snowden worked) assist each other in their respective goals of obtaining data, making profit, and together, keeping it all secret. This enormous bureaucracy replicates itself and justifies its existence. The current number of workers with secret security clearances is around four million—down from five million in 2013!

Finley and Esposito think that the NSA is able to get away with its activities because the public, despite moments of anger, is mostly apathetic towards them. The convenience and pleasure of sophisticated information technology has made us passive consumers of Verizon, Google, and the like. “From a consumer’s point of view, [surveillance] is simply the ‘cost’ of security,” they write. Concerted political lobbying, moreover, has gutted government oversight and regulation of these industries.

Creating clearer boundaries on domestic intelligence ingrained in the bureaucracy won’t just require legislation. Political and cultural change must make the public more conscientious about their consumption habits, and demand accountability from representatives and business executives alike.

Print

Resources

JSTOR is a digital library for scholars, researchers, and students. JSTOR Daily readers can access the original research behind our articles for free on JSTOR.

Stand Up and Fight! The Creation of US Security Organizations, 1942-2005, 2015
Strategic Studies Institute, US Army War College
Berkeley Technology Law Journal, Vol. 29, ANNUAL REVIEW OF LAW AND TECHNOLOGY (2014), pp. 985-1006
University of California, Berkeley, School of Law
State Crime Journal, Vol. 3, No. 2, State-Corporate Crime (Autumn 2014), pp. 182-199
Pluto Journals
World Affairs, World Affairs, Vol. 176, No. 5 (JANUARY / FEBRUARY 2014), pp. 13-23
Sage Publications, Inc.