Privacy Concerns In Intelligence Collection: The USA Patriot Act

Technology and the Internet has become part of nature and the way we conduct business globally. From communication, research, and information collection, nothing can be done without the use of technology and the Internet. The rapid uses of the Internet and advance technology have changed the way information or intelligence is collected. Consequently, concerns about the privacy of the Internet and information collection have increased in recent years.

Privacy today faces emergent threats from an increasing surveillance sources that is often seen right because of national security. Some government agencies such as the Federal Bureau of Investigation infringe upon private communications of citizens based on unclear and misinterpretation of policies. Throughout our history, intelligence collection has provided vital information to prevent attacks both nationally and internationally. As adversaries continue to develop new methods to defeat and attack the United States, modes and complexity of collection methods have increased to combat and prevent the intent and threats of adversaries. As such, the methods used in collection have evolved through electronic means and hence the privacy concerns.

Currently, one of the greatest challenges we face is finding the stability between privacy and national security. The advancement of technology has paved the way for the intelligence sector to collect information. These advances have raised concerns about communication and information privacy and its impact. Although the perception of privacy is complex, there are policies and laws in plays to protect the rights and privacy of individuals. Since the Snowden leaks, the problem of ensuring the security of the nation while protecting people’s privacy has been an issue. To be able to balance privacy and security, intelligence agencies will have to collect information against foreign intelligence and likewise provide the fundamental rights of protecting citizen’s privacy.

As the world continues to advance in terms of globalization and technology, security threat arises from cyber-attacks to terrorism and as such, the need to collect information both internally and externally. After 9/11, the Attorney General gave guidance to the bureau to obtain information needed in its operations. This guidance was a result of the 9/11 findings and how information can be collected in relation to terror or crime.

The general objective of these Guidelines is the full utilization of all authorities and investigative methods, consistent with the Constitution and laws of the United States, to protect the United States and its people from terrorism and other threats to the national security, to protect the United States and its people from victimization by all crimes in violation of federal law, and to further the foreign intelligence objectives of the United States.

With the liberty to operate freely, technical platforms with various capabilities are deployed in various environments to include domestic areas to fetch data. The use of technical devices, drones, and so on were widely used post 9/11. Although the effect could and can be seen, there were negligence and disregard to law and policies. Appropriately, the voluntary of people providing personal information on social media through the internet has made it possible for the intelligence community to gather private information and use it where it applies. This has brought about the perception of infringing on an individual's privacy and concern to the public.

The Oxford Learner’s Dictionary defines privacy as “the state of being alone and not watched or disturbed by other people or the state of being free from the attention of the public” (2020). Citizens have been concerned recently about government illegal collection of their information. This speculation was increased due to the Snowden leaks and collection methods used. Although tensions have increased, citizens are failing to address the fact that, most personal information can be gathered through social media. Subsequently, social media platforms have provided a gateway for intelligence agencies to use people’s information. One can argue that, if I have my information on any social media platform, it does not guarantee the government to use my information. This can be argued within the fourth amendment to protect people’s right to privacy.

The Fourth Amendment of the U.S. Constitution provides that '[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Finding a probable cause is the underlining factor between privacy infringement and information collection. Waters (2014) indicated some members of the Israeli Military Intelligence Signal Unit were reluctant to remain in service due to surveillance used to monitor civilians. This claim was just a year after the Snowden leaks. With the world in shock, members of the Israeli unit used the Snowden situation to voice their concerns over how cameras and other technologies were or are used to collect information on ordinary citizens. In this instance, there was no probable cause and the Israeli military Intelligence Signal voiced their concerns due to violation of citizen’s privacy.

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After 9/11 terrorist attacks on the United States, issues of information collection and collaboration between the intelligence communities were raised. After the outcome, policies and laws were passed to increase surveillance and collection methods. In addition to this, there have been amendments to the Foreign Intelligence Surveillance Act as well as the Patriot Act. “The Foreign Intelligence Surveillance Act (FISA) establishes procedures and authorizes the use of electronic collection methods of foreign intelligence and additionally, the FISA Court was established to approve the use of electronic surveillance for foreign intelligence purposes” (Justice Information Sharing, 2013, pr.4).

In the past few years, due to leaks and domestic issues relating to terrorism and espionage, the Attorney General issued guidelines, which gave liberty to the FBI to use technical methods in intelligence collection. As such, data and information may be obtained without the approval of authority if a situation is imminent. Under the guidelines of the Attorney General, the FBI may have overreached stepped their boundaries in collecting data.

In an October 2018 ruling unsealed and posted on October 8, 2019, by the Office of the Director of Intelligence, the United States Foreign Intelligence Surveillance Court (FISC) found that the employees of the Federal Bureau of Investigation had inappropriately used data collected under Section 702 of the Foreign Intelligence Surveillance Act (FISA). The FBI was found to have misused surveillance data to look into American residents, including other FBI employees and their family members, making large-scale queries that did not distinguish between US persons and foreign intelligence targets.

Ashcroft (2007) provides insight, analysis, and authorized the Federal Bureau of Investigations to conduct investigations based on threats to national security by collecting foreign and domestic intelligence using all abilities and techniques to protect the United States from threats. “ The general objective of these Guidelines is the full utilization of all authorities and investigative techniques, consistent with the Constitution and laws of the United States, so as to protect the Unmuted States and its people from terrorism and other threats to the national security as Executive Order 12333 provides” (Ashcroft, 2007, p.23, pr. 3). The general guidance was as a result of the 11 September 2011 terrorist act. The Attorney General’s guidelines to the FBI Operations especially give the FBI freedom to obtain information needed by the United States in relation to foreign affairs operations.

The plethora of information on the Internet these days have made it easy for data to be gathered. These days open-source intelligence has become one of the main sources of intelligence disciplines to gather data. Apart from the open information on social media and the Internet, technical tools are developed and used in the name of national security to gather information. This has brought about a lack of privacy. Although electronic surveillance is authorized in foreign intelligence investigations, citizens are concerned about their information being gathered without their knowledge.

Under the National Security Letters (NSL), which was expanded under the Patriot Act, the NSL permits the Federal Bureau of Investigations to search, investigate, and gather information without the approval of a judge. According to the American Civil Liberties Union, “The National Security Letter provision of the Patriot Act radically expanded the FBI's authority to demand personal customer records from Internet Service Providers, financial institutions and credit companies without prior court approval” (2020, p.1, pr.1).

The Foreign Intelligence Surveillance Act (FISA) needs to limit government agencies on the proceedings of issuing NSLs without approval. “FISA court judges may, moreover, “impose additional, particularized minimization procedures” with respect to any “nonpublicly available information concerning unconsenting United States person' (Liu, 2015, p.1, pr. 5). Intelligence and data collection took a deep dive after 9/11. With the quick response of passing the Patriot Act, which enables tools required to intercept and obstruct terrorism, the collection has become the subject of intelligence finding regardless of the source of data.

Finding the balance between security and privacy is hectic on the government due to national security issues. As long as collected data does not become the norm of the day, it may okay for citizens to feel safe if personal information is not used against them and instead used in crimes and fighting terror. According to Pulver and Medina, “it is important to evaluate the people’s trust in the government, as mistrust can lead to national security issues. The public has been informed through media, to some degree, of these alleged intelligence collection programs and they are concerned with governmental surveillance” (2018, 11).

History predicts that after an attack on the homeland, laws, and policies are passed and tightened to prevent another attack. In this review, after the September attack, authority was given to collect technical communication to gather and analyze intelligence, both domestic and foreign. With the advance in technology, more capabilities are developed and the collection has infringed on individuals' privacy in recent years. The use of social media platforms has also made it easy to gather information. Although those data are private and not ‘releasable’ to the intelligence community for intelligence purposes, that information is stored and used to provide security measures. In addition, the Snowden leaks increased awareness on privacy issues as well as more security measures in place to prevent further and more leaks.

Intelligent agencies and the Attorney General must take practical and realistic percussions to protect personal information derived from the Internet especially United States persons. When personal data must be used, it must be relevant for the purpose, such as crime and terror activities. In order for all the security policies to be enforced, there must be compliances across all the agencies and intelligence communities. It is paramount to collect information based on foreign intelligence and adversaries and equally essential to protect citizen privacy. In all collection, data collection needs to be approved or reviewed by the Foreign Intelligence Surveillance Court unless a threat is imminent. Today, terrorism, cyber attacks, biological, chemical, and weapons of mass destruction pose a real threat to our country and to prevent any disastrous attacks, we must use preventive measures to identify and neutralize possible attacks before they occur. Additionally, policies governing privacy need to be more stringent to gain the trust and confident of all citizens.

Reference

1. American Civil Liberties Union, 2020. National Security Letters. Retrieved from https://www.aclu.org/other/national-security-letters
2. Ashcroft, John. The Attorney General’s Guidelines for FBI National Security Investigations and Foreign Intelligence Collection. 2007. Web. Retrieve from https://search- proquest- com.ezproxy2.apus.edu/docview/1679103836/fulltextPDF/26DCAC79CCA5485 8PQ/1?accountid=8289
3. Benjamin G. Waters (2019), An International Right to Privacy: Israeli Intelligence Collection in the Occupied Palestinian Territories, 50 Geo. J. Int'l L. 573.
4. Cornell Law School (n.d). Legal Information Institute. Retrieved from https://www.law.cornell.edu/wex/fourth_amendment
5. Justice Information Sharing (2013). The Foreign Intelligence Surveillance Act of 1978. Retrieved from https://it.ojp.gov/PrivacyLiberty/authorities/statutes/1286
6. Gallagher, Sean (2019). FBI misused surveillance data, spied on its own, FISA ruling finds. Retrieved from https://arstechnica.com/tech-policy/2019/10/unsealed-fisa- ruling-slaps- fbi-for-misuse-of-surveillance-data/
7. Liu, Jodie 2015. So What Does the USA Freedom Act Do Anyway? Lawfare, Hard National Security Choices. Retrieved from https://www.lawfareblog.com/so-what-does- usa-freedom-act-do-anyway
8. Pulver, Aaron, and Richard M. Medina. 2018. “A Review of Security and Privacy Concerns in Digital Intelligence Collection.” Intelligence & National Security 33 (2): 241–56. doi:10.1080/02684527.2017.1342929.
9. The Attorney General's Guidelines for Domestic FBI Operations. Retrieved from https://www.justice.gov/archive/opa/docs/guidelines.pdf
10. The Oxford Learner’s Dictionary (2020). Privacy. Retrieved from https://www.oxfordlearnersdictionaries.com/definition/american_english/privacy