Americans Constitutional Rights for Privacy - Research Paper Example

American’s Constitutional Rights for Privacy College American’s Constitutional Rights for Privacy Immediately, after 9/11 attack, US government introduced the “Patriot Act” a law which intended at assisting in deterrence of probable terrorist’s attacks in the future. Critics have assailed it as a draconian Act as it augmented the mechanism of the intelligence agencies to initiate drastic steps against terrorism, offering them with unlimited power to record, keep eavesdropping of, and to supervise those involved in suspected planning and indulging in terrorist attacks in the US soil. Patriot Act also made easier of the interaction, sharing, exchanging of information between various governments. The “war on terror” was introduced by George W Bush, which offered more power and authority to US intelligence agencies as the surveillance has become an acknowledged mechanism to assist in thwarting terrorist attacks in the near future. US government claimed that war on terrorism , and the enactment of Patriot Act are mainly intended to safeguard USA and its citizens from the future terrorist attack or to avert another 9/11 type attack. The main aim of the NSA (National Security Agency) of USA is to gather intelligence data and information so as to carryout national operation for foreign intelligence. SIGINT is the signal intelligence which involves collection data from foreign intelligence agencies, for helping missions carried over by the US government which includes narcotic and crime deterrence, military missions, foreign diplomacy, etc. The FISA (Foreign Intelligence Surveillance Act 1978) controls the gathering of foreign intelligence data and it covers wiretapping, electronic eavesdropping, physical ingress by intelligence agents and trap/ pen orders. Before eavesdropping, intelligence agency has to obtain a warrant from the FISA court (Carmen 2012). Whistle blowing against US government is not a new phenomenon. Earlier, in 1971, Daniel Ellsberg exposed how the US public had been hoodwinked about Vietnam War. Julian Assange leaked US documents about US’s engagement of war in Iraq and Afghanistan. Snowden is claiming that the main purpose of his whistle blowing is to make the world to know how US government is engaged in annihilating the privacy, fundamental rights and Internet freedom of the people all over the world with its massive eavesdropping mechanism which the US government is secretly structuring. Snowden also leaked how NSA is engaged in hacking the computer data in China and Hong Kong. The US government is now portraying whistle-blower Edward Snowden as a menace for its national security to legalize the surveillance programs by NSA. Thus, US government is behaving itself from a neorealist basis by portraying Snowden as a conspirator so as to minimize the outcomes of the data exposed and to reduce their loss of virtual authority and scratch made to their present power position. Thus, US government is portraying Snowden as jeopardy to the national security so as to legalize NSA’s surveillance agendas. In (Katz v United States 1967), the court held that the Fourth Amendment safeguards people, and not places and observed that there was an infringement in attaching a spying tool to a public telephone booth. Thus, Katz case explained the right to privacy is the privilege to be let alone by the law enforcement agencies and by the government. In Katz case, Justice Harlan identified two prerequisites for a reasonable expectation of privacy to be present. (a) the individual should have displayed a real anticipation of privacy and (b) the anticipation should be one that society is ready to acknowledge as logical. Thus, Katz case has been regarded as a precedent as it held that when government officials infringe an individual’s rational anticipation of privacy, there occurs a violation (Carmen 2012). It is to be noted that some states in USA have explicitly forbid through law for carrying over wiretapping or eavesdropping even if permission is given by one of the parties. In (Lee v. United States 1952), it was held that the proof gathered is legally valid as one party has given his permission for the same. The above view was reflected in (United States v White 1971), as it was held by the court that the US constitution does not bar a government agent from employing an electronic tool to record a telephonic talk if one party has given his permission for the same. Hence, in cases where consent by one party is given, then, surveillance or eavesdropping will not be regarded as illegal (Carmen 2012). In (Griswold v Connecticut 1965), the court held that particular warranties in the Bill of Rights have obscurity, established by origination from these warranties that assist to offer substance and life to the citizens. Thus, Fourth Amendment offers the privilege for citizens to remain secure in their homes, persons, and offers protection against unfair seizures and searches (Carmen 2012). In (United States v Karo 1984), it was held that eavesdropping through a beeper in a private home as the open surveillance was not possible in that place, infringed the Fourth Amendment Rights since as the method employed in receiving the warrant proved to be illegal(Carmen 2012). In (United States v Jones 2012) , it was held that planting a GPS devise on a vehicle, mainly to track its movements by the government amounts to a search under the Fourth Amendment and infringed the rights granted to the defendant under the constitution(Carmen 2012). In (Warshak v. United States 2007), Warshak protested to the orders by the government instructing two ISPs to deliver the copies of his e-mails from their servers due to a warrantless search order and prayed the Stored Communication Act to fall under the Fourth Amendment analysis. Both the district court and Sixth Court of Appeals found that there was infringement of Fourth Amendment rights to privacy in this case as there was justification for issue of injunction in this case(Carmen 2012). The Fifth Amendment safeguards a citizen from the action of federal government and states that no individual shall be divested of liberty without due process of law. The Fourteenth Amendment offers analogues safeguards from actions by the US state governments that were initiated without any due process law. Thus, under the Fifth Amendment, an appellant may confront a governmental action for want of procedural due process and however, the appellant has to first demonstrate that there has been a denial of liberty (Emanuel & Emanuel 2008). In the past, in excess of ten thousands of times, NSA had approached the court for its permission for warrants for electronic surveillance and only on four instances, they were declined. (Prados). However, the Snowden revelation that US government has involved in massive eavesdropping mechanism and this has no prior authorization from the US courts (Prados 2013). When US government is encouraging whistle blowers who expose the corporate frauds and why it is trying to punish Snowden as he leaked how US government is infringing the individual’s civilian’s democratic privileges under the camouflage of national security. In (Klayman v Obama 2013), Richard Leon, the U.S District Judge, held that US government gathering of US citizen’s phone records is against the constitutional rights. Leon held that National Security Agencies (NSAs) gathering of metadata, numbers dialed, phone records without dissemination of content seemed infringed privacy rights. Leon observed that plaintiffs in this case demonstrated the infringement of Fourth Amendment which bars unauthorized seizures and searches, and they also proved that US government’s action made irreparable damages to their privacy. He also turned down the claim by the US government that Maryland case 1979 offered precedent to the collection of phone metadata. Leon also said that US government did not offer even a single precedent in which they proved that evaluation of NSAs vast metadata helped them to stop a looming danger or attack or else helped the US government in accomplishing any initiative that was crucial in nature (Mears & Perez 2013). As per Article 17 of ICCPR (International Covenant on Civil and Political Rights of 1996), residents should not be subject to illegal and arbitrary intrusion with their privacy rights. It is to be notified that ICCPR is acknowledged by 160 nations, including USA. After Snowden’s leakage, many countries, including Germany, Hungary, Austria, Lichtenstein, and Switzerland is making attempt to amend the Article 17 of ICCPR to insert additional protocol to cover the demeanor of the spy agencies (particularly NSA). It is to be noted that even if such addition is made, it will not have any big impact as the United Nation’s Human Rights Committee is enforcing the ICCPR, and its commendations are not binding legally thereby treating the committee as just a moral authority. Snowden exposure revealed that in the past many years, USA, UK, Canada, Australia and New Zealand had disregarded the Article 17 ICCPR. However, at present, coalition led by German is attempting to stop of the spying on both e-mail and telephonic conversations all around the world which is being regarded as a poignant development in this arena (Gallagher 2013). No doubt, the war on terror has resulted in the enhanced surveillance and security initiatives throughout the world in the name of espousing national security. The citizens all over the world have been informed that only way available for governments is to permit this ever-growing surveillance. Thus, artificial uncertainty and fear have been created in the citizen’s minds despite the fact there does not appear to be any imminent threat from terrorists. Therefore, surveillance tantamount to a major threat for democracy and also to its accountability and legitimacy. Meddling and surveillance over the private information like e-mails, phones; the Internet, etc. will definitely destabilize the confidence and the trust which the citizens have on their respective governments (Bollingtoft et al.2013). Thus , as per the principles laid in Klayman v Obama, Katz v United States Griswold v. Connecticut United States v Karo ,United States v. Jones , and Warshak v. United States, it seems that as US government has not obtained the prior permission from the court for its eavesdropping of e-mails ,phone messages , it has definitely infringed the privacy rights of gullible citizens .Further , Snowden’s revelation also urges the need to legislate an international law to uphold the privacy, fundamental rights and Internet freedom of the people all over the world by preventing any massive eavesdropping mechanism by any government in the world in the future. References Bollingtoft, CW, Vognaes SF, Elmquist-Clausen, C, Genest, R L, Helvaci, P and Aguilar, NDA.2013.”Under the Guise of National Security.” December, 18.http://rudar.ruc.dk/bitstream/1800/13534/1/UNDER%20THE%20GUISE%20OF%20NATIONAL%20SECURITY.pdf. (Accessed February 10, 2014). Carmen, R D. 2012.Criminal Procedure: Law and Practice. New York: Cengage Learning. Emanuel ,S & Emanuel, L.2008. Constitutional Law. New York: Aspen Publishers. Gallagher,R.2013.”After Snowden Leaks, Countries Want Digital Privacy Enshrined in Human Rights Treaty”. September 26,http://www.slate.com/blogs/future_tense/2013/09/26/article_17_surveillance_update_countries_want_digital_privacy_in_the_iccpr.html (Accessed February 10, 2014). Mears, B&Perez, E.2013. “Judge: NSA Domestic Phone Data-Mining Unconstitutional.” December, 17.http://edition.cnn.com/2013/12/16/justice/nsa-surveillance-court-ruling/ (Accessed February 10, 2014). Prados, J, 2013.The Family Jewels: The CIA, Secrecy and President Power. Texas: University of Texas Press. List of Cases Griswold v. Connecticut. 1965.381 U.S.479. Katz v. United States.1967.389 U.S.347. Klayman v. Obama. 2013. (13-cv-881). Lee v. United States.1952.343 U.S. 747. United States v. Karo. 1984.468, U.S. 705. United States v. White.1971.401 U.S. 745. United States v. Jones.2012.565 U.S. Warshak v. United States.2007.07a0225 p.06 (6th Cir.). Read More