This was originally submitted as a term paper for ECS 188: Ethics in an Age of Technology class with Professor Saltzen in Winter 2024 quarter.

The United States Government’s involvement in digital surveillance on American communication platforms represent an unethical use of technology that infringes upon numerous Constitutional amendments and raises significant concerns of personal privacy and confidentiality of information.

Six weeks following The September 11 attacks, then-President George Bush signed The USA Patriot Act into law, broadening the government’s authority to conduct searches and surveillance on American citizens. This legislation authorized both physical searches and wiretapping, increasing the government’s capacity to obtain individuals’ records of financial, personal backgrounds and communication data – including those that are held and maintained by private third parties. Completing The September 11 investigations seven years later, the United States Congress concluded that there was a lack of communication between domestic and foreign investigation agencies and signed Section 702 of the Foreign Intelligence Surveillance Act (FISA) into law. It granted the National Security Agency (NSA) the ability to intercept digital communications (phone calls, texts, emails, social media activities, and internet browsing) of foreign individuals, in the means to protect the “homeland and the American people.” While FISA was originally enacted back in 1978, the two aforementioned acts have expanded the boundaries of government authority and created a legal framework and protections for actions that breach the principles on which this nation was originally founded upon. Billions of dollars of taxpayer funds have been spent on federal institutions for programs that aim to protect its own people, yet the agencies have grown powerful with evolving technologies without proper check of power and accountability for actions that deprive individual privacy and liberty in reality. The current United States’ governments’ use of mass digital surveillance is not only unethical but dangerous to maintaining the future of democracy in this nation.

To better assess the ethicality of the issue, it is best to observe specific ways in which the government engages in digital surveillance. Edward Snowden, a former NSA contractor who worked as a systems engineer, famously shared classified documents about the agency’s surveillance on American citizens, later being charged with two counts of violation of the Espionage Act. His revelations included the existence of programs like PRISM, which allowed NSA to gain direct access to servers of many tech giants such as Google, Apple, Yahoo, Microsoft and Facebook and collect user communications, with the intention to aid NSA’s efforts in counterterrorism and intelligence. While the technical details of the program remain classified for the most part, it has been inferred that PRISM went through data collection phase where vast amounts of content (from messages, emails, photos, videos, etc) were gathered from each individuals, which were then sent to extensive filtering and processing step where algorithms and automated analysis filtered down large data to information most relevant to the agency’s objectives. In addition, there was analysis of metadata conducted in order to gain insights into sources of communication and patterns of connections between certain individuals. This includes a collection of telephone metadata that contains records of phone numbers, its identity, call durations, times, etc on millions of Americans and individuals abroad.

Snowden further revealed a confidential computer system known as XKesyscore, a tool used by the NSA to search and analyze global internet traffic. During an interview with a German media network, Snowden mentioned that XKeyscore allows one to “read anyone’s email in the world, anybody you’ve got an email address for. Any website: You can watch traffic to and from it. Any laptop that you’re tracking: you can follow it as it moves from place to place throughout the world.” Snowden explained that NSA analysts are able to search for internet activity of individuals without prior authorization, highlighting the potential for misuse other than the intended intelligence purposes. One of Snowden’s documents revealed that the amount of data the XKeyscore processes a day exceeds over 20+ terabytes, meaning data storage presents a technical challenge. While most data can only be stored for just a day, analysts can choose to move and store certain data to a longer period of time through a multi-tiered database system. It was revealed that XKeyscore holds the most amount of data collected by the NSA. Snowden also shared documents relating to The Five Eyes alliance (FVEY), which comprises intelligence agencies from 5 nations, namely the United States, Australia, Canada, New Zealand, United Kingdom. The alliance reportedly engaged in intelligence sharing activities across a wide range of areas, from military, foreign and communications, including raw data as well as intelligence analysis. Snowden’s documents revealed information about various mass surveillance programs that were conducted in a joint effort within the alliance. Snowden's actions followed immediate condemnation from the US government, who labeled him for treasonous actions that put national security in jeopardy, with his passport being revoked. On the other hand, he was considered a “whistleblower” by the public with some hailing him as a hero for his actions that increased awareness of the government’s wrongdoings by engaging in mass surveillance.

Over the years many laws have been enacted and amended to provide greater legal protection for the United States government from taking actions that would otherwise be deemed illegal, criminal and unconstitutional. Regardless of the status of legality, the actions of mass digital surveillance can be interpreted to violate various Amendments of the Constitution. It concerns the First Amendment given that surveillance will discourage free speech and open communication, if certain groups or individuals feel that they are being watched and may face consequences for it. It directly violates the Fourth Amendment, which protects citizens from unreasonable searches and seizures and requires them to be carried out with a warrant of probable cause. Mass digital surveillance and data collection directly violates this idea of probable cause and warrants given for reasonable cases, since it infringes upon the rights of every citizen. The Fifth Amendment guarantees that citizens not be subject to prosecution without due process of law, and it could be argued that mass surveillance without judicial oversight violates this right as it provides no opportunity for the individual to know about the ongoing surveillance. The United States was founded upon these very principles, and for the governing body to engage in actions that directly violate them is wrong and immoral. In a nation where individual liberties must be upheld and protected, the State’s mass digital surveillance infringes on privacy rights and forbids a space for confidential, private conversation where individual data can be protected. Defending the government’s actions can potentially worsen their abuse of technology that eventually drives society to a state that resembles one of an authoritarian – even if Americans do not feel that their lives are not personally affected today, failing to recognize the dangers and calling out the wrongdoings can lead to an all too powerful government, something that Americans should oppose in order to keep the powers in the hands of the people.

In The Foreign Intelligence Surveillance Act and The Separation of Powers, author Scott A. Boykin from University of Arkansas at Little Rock Law Review explains the consequences of the Foreign Intelligence Surveillance Act and its subsequent amendments – Despite being passed initially as a way to impose institutional checks on surveillance activities, FISA has, over time, only given more unchecked power and authority to these agencies. He argues that it led to a concentration of power in the executive branch, lessening the core principle of separation of power, which the United States government is structured under. He writes, “it has undermined congressional oversight of the implementation of laws the Congress has enacted to impose limits on the conduct of surveillance activities by the executive branch.” (Boykin, p.58). He addresses the exact concern of ending up with an overreaching government as a result of growing mass digital surveillance programs and failures to keep the power in check. The sentiment that advancements in surveillance technology intersect with a rise in authoritarianism is also reflected in the report A More Responsible Digital Surveillance Future written and published by Ishan Sharma from the Federation of American Scientists. It calls for democratic governments to lead an example through promoting and practicing responsible surveillance and criticizes the lack of accountability in the judicial system in the United States when it comes to misuse of technology from the federal government. It also offers a slightly different perspective, arguing that certain immigrants and marginalized communities “continue to face immense oppression from surveillance operations” (Sharma, p.6) given the harmful consequences of predictive policing algorithms and potential biases in the technical implementations of the surveillance used. The author claims that the “example the United States has offered the world is characteristically un-American: a “wild-west of morally bankrupt incentives overrun by opaque, “black-box” public-private partnerships.” It calls out the irony of the American surveillance system, which is lawless and chaotic, and failing to adhere to the principles of accountability and individual liberty, all of which are associated with American values.

Beyond the ethical concerns and implications, there are also many cyber risks associated with mass data collection and storage of analysis conducted by the intelligence agencies. Should any personal data of American individuals be exposed to the public or other bad actors, both domestic and foreign, it could put American society at a critical risk. Due to confidentiality, there aren’t many resources on how exactly agencies like NSA keep their data and their system secure. But aggregation of large data and storage of the growing data is bound to face challenges with security, and scalability of such security. There have been many recent cases of data breaches in federal government agencies, including the Department of Energy in 2023, and public educational institutions such as the University of Georgia. There have also been several cases of data breaches in the NSA, such as the case of Harold T. Martin III, who was guilty of insider data breach, after being found with 50 terabytes of classified documents. The government still operates under real individual employees, and there is no strong regulation that can guarantee absolute security of the data by the employees who operate the surveillance programs. With more powerful technologies and growing data, there is only a growing risk of greater problems.

In a more recent case, former Fox News journalist Tucker Carlson alleged that the US Government was spying on his communications, claiming its interference with his initial plans to interview Russian President Vladimir Putin. While the validity of the claims are not verified, the accusation isn’t entirely far-fetched or absurd – through various cases it’s been proven that US agencies can, and absolutely do survey on its people and their communications. It should be a cautionary tale to know that part of American society lives in fear of the government potentially intervening with their private affairs. The effectiveness of the surveillance programs in thwarting terrorist attacks or any other forms of domestic threats is also left for a debate; while the NSA claims that they have found hundreds of terrorist individuals through their intelligence services, another source shows lack of evidence supporting their program’s effectiveness. The White House review panel on NSA Surveillance concluded that the program was “not essential in preventing attacks”, having found no evidence that showed meaningful results from the agency’s mass collection of telephone call records. In an interview with NBC, Geoffrey R. Stone, a Professor of Law at The University of Chicago, mentioned that “the mass collection of telephone call records was a ‘logical program’ from the NSA’s perspective” yet “one question White House panel was seeking to answer was whether it had actually stopped any [terrorist attacks] that might have been really big.” (Isikoff). In such a case, the cons greatly outweigh the pros and once again puts American individuals at stake.

There is compelling evidence of the federal government’s misconduct and unethical practices with use of technology, highlighting the urgent need for the American public to both recognize and take actions. Technological advancements have, for the most part, improved the standards of living of every individual, and it’s crucial for the public to also recognize the potential dangers and misuse of it, especially when practiced by a governing force. Figures like Edward Snowden have played a critical part in raising awareness of the existing issues, and it is now left in the hands of every American to enforce real changes through political participation, repeated media exposures, and lobbying for the enactment of regulations that honor and respect the Constitution and the fundamental principles of this nation.

Works Cited
- Michael Isikoff December 20, 2013 NBC News. “NBC Interviews Geof Stone about NSA Review Panel.” University of Chicago Law School, 23 Nov. 2015, www.law.uchicago.edu/news/nbc-interviews-geof-stone-about-nsa-review-panel.
- The Foreign Intelligence Surveillance Act and the Separation ..., lawrepository.ualr.edu/cgi/viewcontent.cgi?article=1944&context=lawreview. Accessed 21 Feb. 2024.
- A More Responsible Digital Surveillance Future, uploads.fas.org/2021/02/Digital-Surveillance-Future.pdf. Accessed 21 Feb. 2024.
- Richards, Neil M. “The Dangers of Surveillance.” Harvard Law Review, 24 Mar. 2023, harvardlawreview.org/print/vol-126/the-dangers-of-surveillance/.
- “Edward Snowden, the NSA, and Mass Surveillance.” CT.Gov, portal.ct.gov/SDE/CT-Core-Standards/Materials-for-Teachers/Science-Social-Studies-World-Languages/Social-Studies/Lesson-Plans---Social-Studies/Social-Studies/Grades-11-12-Edward-Snowden-The-NSA-and-Mass-Surveillance. Accessed 20 Feb. 2024.
- Government Surveillance and Incentives to Abuse Power, www.ischool.
- The USA PATRIOT Act: Civil Liberties, the Media, and Public ..., ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2097&context=ulj. Accessed 21 Feb. 2024.
- Effectiveness of Metadata Information and Tools Applied To ..., digitalcommons.unl.edu/cgi/viewcontent.cgi?article=2608&context=libphilprac. Accessed 21 Feb. 2024.