Terrorism and Social Contract - Term Paper Example

The nature of terrorism in the 21th century means that the social contract focused almost exclusively on civil liberty must be re-negotiated based onthe responsibility of the government to keep its citizens safe. Introduction Terrorism is as any act that is politically motivated and consists of violent activities or an action that jeopardizes infrastructure, human life or property. Such activities are intended to have an impact on a policy of government through intimidation, coercing the general public or the behavior of a government through assassination, hostage-taking or kidnapping. According to the United Nations, terrorism is a criminal activity that is calculated or intended to produce a state of fear in the civilian population. After 2001, September 11 attacks, the U.S. government termed all kinds of non-state force ‘terrorism. Terrorism results from religious extremists, states, insurgents, and criminals. Due to the challenges faced by the government to fight terrorism, new technologies have emerged to assist in the fight against terror. Some of these technologies include the monitoring of private communications of individuals around the world and mass surveillance of U.S. citizens. The DARPA (Defense Advanced Research Projects Agency) reported that it has created an information technology that could allow access to personal identifiable information to be in the war on terror. As a result, this has attracted a lot of questions from the general public as well as political bodies on its effectiveness, legality, and ethical boundaries. The concern revolves around the likelihood of the government utilizing personal information on permanent denizen aliens and U.S. citizens that has been gathered by private or public organizations without their consent. The reasons provided by the government on the use of these technologies have been shown to be inefficient, illegal and immoral. The justification for surveillance According to NSA, there are two programs that focus on the foreign and domestic surveillance. The local program, ‘metadata program functions by section 215 of the USA Patriotic Act and consist of gathering of all record data inclusive of times of calls and phone numbers. The foreign program ‘PRISM program works according to section 702 of (FISA) Foreign Intelligence Surveillance Act. FISA Act permits a government to perform surveillance that targets the content of communication by non-U.S. citizens that are abroad. This inspection obtains foreign intelligence data. President Obama in 2014 acknowledges the ‘legitimate privacy interests of the non-U.S and U.S. individuals as conformity to fundamental principles. He defines the activity of foreign intelligence information as a way of obtaining details in associations to activities, abilities, and intentions of foreign aspects or governments, terrorists, and organizations. Also, President Obama defends the NSA programs stating that they are for the purpose of ‘detecting and countering terrorism, financial crimes, nuclear propagation, a threat to U.S. forces and espionage. Many also insist that the surveillance that is taking place is completely legal. Constitutional Protections of the Fourth and Sixth Amendments do not apply. "In three circumstances, however, the government may proceed with surveillance for foreign intelligence purposes without an FISA court order. “The first these when the authorizes observation endorsement the if the verifies that the suggested scrutiny exclusively aimed capturing conveyed methods used entirely alien powers or aimed the procurement of official information other verbal communication possessions the private control foreign power. And finally, under FISA, the Attorney General may approve international intelligence scrutiny without a warrant for a duration exceeding fifteen days after Congress makes formal war declaration. (Katyal, pgs.1030-1031) Preservation and protection of state and its citizens is another issue with the longstanding precedence that comes to the forefront of justifications for the various surveillance programs that have come under scrutiny. "Unlike the criminal justice system, which seeks to detain offenders, protection of national security need not rest on particularized suspicion of a particular individual." (You, pg.904) This is a rationality that precludes some eminent threat against the United States, its interests, and its citizens. When a threat is that may jeopardize any of these, there is a long history of government taking actions that may be considered illegal under normal circumstances. The Supreme Court and Congress have a long tradition of creating a precedence that legalizes such actions for the sake of national security. Presidentjustifiedthesurveillanceplansofficialvisitsayingknowleastthreatshavebeenavertedbecausethisinformationjustthebutsomecasesthreatshere so lives have been saved." (Cayford, pg.1) The Fallacy A report by New America Foundation alleges that the claims by the government about the function of NSA ‘bulk surveillance of email and phone communications register keeps U.S. secure from terrorism, are misleading and exaggerated. In an address to NSA General Keith Alexander in October 2014, Senator Wyden his Democratic on Senate, Mark Udall, ""the intelligence community has stated repeatedly that it is not possible to provide even a rough estimate of how many American communications have been collected under the Fisa Amendments Act, and has even declined to estimate the scale of this collection." (Greenwald, pg.4)" (Greenwald, pg.4) Also, New America Foundation suggest that scrutiny of American telephone information has no apparent effect on stopping terrorism activities but has served more to prevent minor acts such as fundraising for a terrorist movement. Moreover, analysis of the use of databank of U.S. residents phone information in a particular plot; raises the question of the need for Section 215 massive collection program. The administration states that the U.S. telephone metadata permits spy bodies to move quickly by ‘connecting the dots and stopping forthcoming 9/11 attacks, rather than the traditional challenge of proof about criminal warrants. This was proven false case where the waited for period months start investigation and culprits phone employing the phone connect call. In a final response to President Obamas comments made in Germany, it is true that various intelligence agencies have repeatedly stated the effectiveness of their questionable surveillance programs. The government claims that PRISM and the gathering of telephone corporation metadata interrupted 54 terror plans, one-fifth of which were to be executed within the boundaries of the US. However, opponents have studied these figures, showing disbelief concerning the consistency of government officers testament and the competence of the dissatisfied plans as a measure of effectiveness. (Etzioni, pgs. 9-10) Illegal and immoral A report by New York Times disclosed that NSA was performing wiretaps of international e-mails and telephone calls that were not warranted. This was after the Bush Administration believed that one of the participants in the communication had links with al Qaeda. The illegal activity of eavesdropping occurred for four years and indicated a drift from the Agencys foreign focus. The government defended the wiretaps program but in a very real sense it was an illegal activity. According to Wiretap Act, there must be a warrant issued for wiretaps in criminal investigations. Also, FISA demands that an order is for a wiretap that involves ‘electronic surveillance. From this perspective, the program fell outside FISAs definition of ‘electronic surveillance hence it could not obtain domestic content nor target U.S. citizens. Therefore, because NSA has deliberately gone against the Wiretap Act and FISA Act, the program seems to be illegal. From of, on May 11, 2006, USA Today NSA in its by U.S. Database. This information cannot be proven as the data collected protected by the secrecy of national security, but it seems that NSA could be collecting a database with details on important parts of many domestic calls. It is immoral because such information trespasses peoples privacy, and the act is against the Stored Communications Act. The Stored Communications Act does not permit public telecommunications providers to provide call records to the state without a warrant. Also, Congressional Research discovered unethical means used by government agents to get hold off calling records. Some unethical behavior involved the act of ‘pretexting where corrupt data brokers pretended to be customers to get data and telephone records. These agents offered their services to non-government entities and private investigators. Some government agents utilizing these services run in states that limit law implementation access to the obtained data. The illegal justification presented by defenders of the surveillance programs falsely rests on the notion of the Third Party Doctrine. Third legal theory states that those who willingly give information third parties such banks telephone companies service well have no reasonable privacy. When the government begins to conduct dragnet searches of vast databases of third-party information without any required justification, we have realized the twenty-first century equivalent of the general warrants that the Fourth Amendment was specifically designed to forbid. (Henderson, pg.982) In of, in which has, Fourth, Sixth Amendments would of Rights of People that into Amendments of United States Constitution. The Third Party Doctrine is simply an illegal loophole that blatantly defies the most fundamental principles put forth in the Constitution. Fortunately, there have been voices and decisions from the Supreme Courts that have begun to take action against this illegal surveillance. "U.S. District Judge Richard Leon said the National Security Agencys bulk collection of metadata -- phone records of the time and numbers called without any disclosure of content -- apparently violates privacy rights. ‘I cannot a ‘‘‘‘than high-tech of data on of without,’ Leon, and of President George W. Bush. ‘Surely, such a program infringes on that degree of privacy that the Founders enshrined in the Fourth Amendment." (Mears, CNN) And since Judge Leons decision, others on the bench have begun to step forward as well. "A unanimous panel of the United States Court of Appeals for the Second Circuit held on Thursday that federal law does not authorize the National Security Agencys sweeping database of U.S. phone calls." (Millhouse) The legal ramifications of these surveillance programs extend far beyond the U.S. justice system as well. "Article 17 of the ICCPR (International Covenant on Civil and Political Rights) protects individuals from "arbitrary or unlawful interference with [their] privacy, family. Home or correspondence and continues that the language limits state duty individuals territory and subject jurisdiction; However, international tribunals and most scholars reject this view." (Margulies, pg.2138) Courts the world and this example expresses international tribunals have already begun reviewing the programs relation treaties and agreements the signed ratified and is abiding President Obama did not say anything about the government duties under ICCPR. The U.N. Human Rights Committee are of the opinion that the ICCPR needs a sovereign power to honor and make sure people are treaty rights within a state partys boundary. The role government this case consider the objective enhance human rights and also consider the practical concerns directing state oversee those rights the world and respect Article 2(1) of the ICCPR binds each sovereign party to honor and make sure that people in their habitat and under its jurisdiction have their rights identified in the current agreement. Besides, the doctrines of treaty formulation under Vienna Convention on the Law of Treaties demand reading of an agreement in according to the ordinary connotation of its words. The ‘normal implication of two situations related by a conjunctive, ‘and in that a duty arises upon fulfillment of both situations. This implies that a state has an obligation under ICCPR to people who are ‘subject to its jurisdiction and ‘within its territory. Through unauthorized leaks of classified information, the American citizenry has grasped the actions of the National Security Agency (NSA). The body has instituted several programs for recording peoples information. Under Section 215 of the PATRIOT Act, the Foreign Intelligence Surveillance Court (FISC) is allowed to issue orders that require the production of substantial proof that is requested by the FBI. The decree demands that there should be facts that give rational basis to believe that the required information applies to a study. Section 215 states that the sought information must be of interest to an existing investigation. Therefore, bulk seizure of every citizens information is illegal (Greenwald). Until now, only two judges of the federal district court have challenged the program in New York and the District of Columbia. Both judges argue that because Congress still has sovereign immunity to let the legality of Section 215 to be in court, federal courts do not have the jurisdiction to listen to these statutory challenges. This issue may have to be discussed by Congress. However, both judges argue that American citizens have the constitutional right to challenge the collection of their phone records and conversations (Henderson, pg.1025). So far, only the surveillance of phone records has been challenged in court. However, the justification provided by the government for the seizure of this information applies to other aspects of business, such as spying on credit card transactions. Some officials such as Judge William Pauley of New Yorks Southern District argue that when an individual gives his details to banks, accountants, and subscribed services, they have no constitutional anticipation of privacy. Even facts given to an internet service provider and information from a home computer transmitted online by email cannot expect constitutionally protected privacy. If American citizens learn that government supercomputers keep all their private information and browsing history, the trust between the administration and the citizens will break (Margulies, pg.2138). Therefore, there are many things at stake besides the bulk seizure of data. There are two parts in the Fourth Amendment concerning data collection. The first is the right of people to live securely in their homes as they use their papers and other items. They should be from unreasonable seizures and searches. Second, upon likely cause and reinforced by a pledge or assertion, is the only time when a place can be, and the concerned people and their effects seized. In the past, the reason behind the adoption of the Fourth Amendment was to prevent general warrants by British officials to search anywhere they pleased. In response to this exploitation, the Fourth Amendment states that the items to be under a warrant must be described clearly (Katyal, pgs.1030-1031). Considering this, the reasons behind the orders given to Verizon and other telecommunications companies to collect phone records data become apparent. These companies are under the order to produce all call record details continually on a daily basis. Since they lack particularity, these orders are the modern equivalents of the general warrants that were given by British authorities before the American Revolution. Similar to general warrants, mass data seizure programs expose the private information on innocent individuals. These acts are perpetrated without people knowing and without a prospect of a remedy (Cayford). It is important to note that the American Founding generation, as well as the English authorities, considered the seizure of papers for later scrutiny an abuse of power. These seizures were different from but equivalent to the use of general search warrants. This is the reason behind the inclusion of papers besides other personal effects in the Fourth Amendment. Therefore, any warrant to scrutinize documents fell under general orders even if it was specific to the suspects location and the item to be. Taking a persons papers so that they could be was considered synonymous with going through an individuals mind and studying his thoughts. When the authorities first seized papers and then searched for evidence of criminality later, it was seen a gross abuse of power. Besides, putting such information at the permanent disposal of the government is similar to restricting peoples liberties to promote political popularity (Greenwald, pg.6). As an illustration, gun rights advocates have challenged the registration of firearms for long because not knowing where the guns make it a difficult to collect the weapons in future. This illustrates the danger that such practices pose. Holding a lot of information from the phones and emails of individuals would render gun registration redundant because the NSA would have enough information to find most gun owners. Issues with the Constitutional Justifications of such Programs Despite its illegal nature, the government still finds ways of justifying its massive collection of phone and personal data. The reasons for the reason lies in two cases from the Supreme Court. In 1967, there was the case of Katz vs. the United States. It was about the enforcement of the law to wiretap a phone booth used by the public. Katz represents the proposition that the Fourth Amendment secures the only communication that people have a reasonable expectancy of confidentiality. Since the people using a phone booth reasonably expect their conversations to be private, such booths cannot be bugged unless a search warrant is first obtained (Etzioni, pgs. 11-13). Smith v. Maryland is the second case that was decided in 1979. Smith used the "third-party doctrine" to acquire information that was possessed by phone companies. The court reasoned that individual phone users reasonably expect privacy in their phone call records. These include the dialed numbers and the call durations. People acknowledge that the phone company, being the third party, has access to this information. The court ruled that law implementation officers do not require a warrant to install a pen register on a telephone, which recorded the numbers called and their duration. However, it did not record the content of the conversations (Henderson, pg. 845). Americans learned that the Foreign Intelligence and Surveillance Court upheld the NSAs data seizure program. They thought that the program was entirely on US Supreme Courts judgment in Smith v. Maryland. The court felt that the data collection orders by the NSA were permitted by the Constitution because the information they collect is similar to that which Smith indicated that telephone companies have no practical prospect of privacy under Katz. Superficially, this argument appears to hold water, and it has persuaded many law experts including Judge Pauley of New Yorks Southern District (Margulies). However, there exists a significant distinction between the occurrences in Smith and the actions of NSAs officers. In the case, an individual who had been robbed gave the police department a narrative of her attacker and a 1975 Monte Carlo that she saw close to the robbery scene. Later, she began getting obscene and threatening telephone calls from a man who claimed to be the thief. In one particular phone call, the alleged robber commanded her to step out onto her front doorway. She saw the same 1975 Monte Carlo slowly moving past her home. The police arrested a man who matched the description of her neighborhood. They traced the license plate number and discovered that the vehicle was registered under Michael Lee Smith (Mears). Then, they asked the telephone company to place a pen register at the central offices to record the dialed numbers at his home phone. Although the police did this without a warranty, they already had reasonable suspicion that Mr. Smith was involved in unlawful activities. If the NSA uses Smiths case as the justification, then their activities are similar to installing a pen register on every Americans phone without discrimination. Besides, it raises the suspicion that these people have done illegal acts like Smith, which is false. This implies that every American should be like Michael Lee Smith. Unlike the pen register on Smiths phone that only lasted a few days, each person would have pen registers on their phones for their entire lives (Shemell). In the past, the government had to hire third parties to install pen registers, and this meant that there was a record of what the government was doing. Besides, if the government attempted to collect such information from every citizen, the large amount of data would have prevented the exercise. Currently, however, large data quantities can be digitally stored in enormous NSA facilities. During briefs, the government admits that the NSA subjects the data to computer analysis to discover suspicious patterns. Other people have defended the collection and storage of such data to allow for future searches of records in pursuit of later investigations (Smith). Once the government collects such information, it can use it, in the same way that the British authorities seized papers using general warrants with the aim of perusing later it in search of criminal activity. Data seizures by the NSA enable it to study the activities of nearly every American. Terrorists who learn about the NSAs activities will avoid using their phones. If this is the justification for the massive mining of data by the NSA, then there must be an error in the constitutional doctrine that created it. The fault is in the use of the term "third-party doctrine" combined with the difficult concept of reasonable expectation of privacy in Katzs case (YOO). How Katz and Smith are confused To comprehend the flaw contained in the governments theory, one must remember that the Fourth Amendment was the solution to the menace caused by nonspecific warrants. Pen registers were installed by the phone companies to track people in whom there was reasonable suspicion. Applications of the third party doctrine to business records such as emails and bank records apply to a particular company or person. Therefore, the first problem with Smith v. Maryland is that the case is being stretched by the NSA to justify a situation that is entirely different from the law used by the court when addressing Smith v. Maryland. Since the massive data seizure of every phone record in the country has no basis, the rationale used in Smith cannot be used to extend to this situation (Etzioni). Judge Richard Leon of the District Court of the District of Columbia had the same opinion that Smith v. Maryland cannot be in justifying NSAs activities. He felt that the NSAs actions violated the Fourth Amendment. For Judge Leon, the correct question that needs to be today is: with the evolution of the capabilities of government surveillance, do the fundamentals of Smith apply? Despite the fact that lower courts are expected to follow the precedent of the Supreme Court, they are prohibited from using general statements employed by the Court in one instance and applying it in another instant. Courts that are lower than the Supreme Court are expected to try and apply existing doctrines to new situations. This includes finding out the shortcomings of existing theories in the circumstances that they occur (Henderson). The fundamental difference between Smith and every third-party business record is particularity. The Fourth Amendment was enacted to prevent general warrants. In their place, there was supposed to be a particular search or seizure. In fact, this is what the US Supreme Court has ever purported to authorize. If Congress does not change its practices, the Supreme Court will have to reconsider the definition of the term "reasonable expectation of privacy". The expectation of privacy contains a level of circularity that judges are likely to confuse their privacy expectations with what a reasonable person expects in Katzs case. The case runs on the hypothesis that a reasonable hypothetical individual has a stable and well-developed set of privacy expectations (Katyal). We need to remember that the term "reasonable expectations" pervades academic literature and case law applies. Instead of using untethered and airy judicial speculations regarding "reasonable expectations", courts need to adopt the orthodox contract and property rights definitions in the Fourth Amendment. Courts need to examine how people use devices that function as the walls of their homes to keep their digital information private. A study into the legal and physical barriers that people have placed on their information such as the use of passwords can indicate whether such information is held close. This will help in determining the threshold of personal security that the Fourth Amendment requires warrants to surpass. Therefore, there should be no distinction between sealing a letter before posting it, using a phone booth in a secluded area or using a password to protect ones email (Cayford). The "reasonable expectation of privacy" contains the inquiry required by the Fourth Amendment. There is a real reason the Fourth Amendment uses the possessive pronoun "their" to represent houses, persons, effects and papers that it protects. People own themselves and their things, and this forms a necessary counterweight to the power of the state. By submitting themselves to property and contract law, people create their privacy zones. In reality, the legal and physical barriers that people use their information define their reasonable and actual privacy expectations (Greenwald, pg.15). With regards to the private information given to third parties, the Supreme Court should acknowledge that consumers from service contracts. Regardless of whether they are telecommunications companies, credit card companies or banks, they expect their information to be in ways specified in these policies. When people protect their information using passwords, they expect it to remain private in the same way that Katz expected when he closed the door of the public phone booth (Henderson, pg. 985). Conclusion In conclusion, the issue of fighting terrorism using NSA programs should be reviewed to ensure that citizens are safeguarded against inhuman acts, but there are limits to which any government can go to do this. The priority of any government is to ensure that its residents are safe through legislation. Using creative interpretation existing laws creating new law individual rights and continually expanding the scope past precedences the point negating the original intentions the rights the people only lead tyrannical government increased inevitably create situation greater threat the state well abroad thus justifying greater and greater measures needed the state protect the state risk The cost of liberties to any people cannot exist without some degree of risk and threat, and as with all systems of life, these risks will be greater at times and lesser at others. The purpose government and the people act great restraint time seven the risk high costs ensure that the primary focus always provide and protect the liberties and freedoms the people it serves Works Cited Cayford, Michelle, Coen Van Gulijk, and P.h.a.j.m. Van Gelder. 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