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I am in need of a 400 word discussion post as well as two 250 word responses.
Discussion: Should the US Military or other US Federal agency conduct surveillance and collection within the United States, without a warrant or other legal means, at any time? What about outside of the United States at any time on American citizens? Should the various law enforcement agencies found at state and local levels be able to conduct surveillance and collection within the United States when they have a warrant, but also be able to do it when they do not have a warrant?
Response #1 (Seth Dugan): Good Morning Professor and Classmates,
Lawmakers are divided over legislation that permits the U.S. government to surveil noncitizens overseas without a warrant, known as Section 702 of the Foreign Intelligence Surveillance Act (FISA). The legislation, set to expire last December, allows the National Security Agency (NSA) to collect communications of foreigners who are located outside the U.S. and have been deemed intelligence targets. Critics argue that this legislation threatens the civil liberties of Americans, as some of the communications collected could be about or with U.S. citizens, allowing the government to track Americans through those communications.
Those in favor of the legislation argue that it is critical to the nation’s security, as losing this vital provision would raise profound risks. The National Counterterrorism Center (NCTC) also expressed concern about the potential loss of Section 702, stating that it is essential for finding and disrupting serious security threats.
Groups like the American Civil Liberties Union (ACLU) have voiced concerns that not reforming Section 702 could lead to “backdoor” surveillance on Americans. They pointed to examples of the FBI using Section 702 to conduct searches on Americans’ communications around racial justice movements and protests, as well as to surveil journalists and members of Congress.
The House Judiciary Committee bill proposed by the ACLU would reform Section 702 to require federal agencies to obtain a warrant before conducting queries on U.S. citizens and ensure accountability for those who violate the civil liberties of Americans. However, the “Queen of the Hill” showdown vote was postponed until 2024, and FISA approval was extended until April 2024 to give lawmakers more time to come to an agreement on a best path forward for Section 702.
Wishing everyone a great week!
Best,
Seth
Congressional Digest » Pros and cons of warrantless surveillance. (n.d.). https://congressionaldigest.com/pros-and-cons-of-warrantless-surveillance/
Response #2 (Oyatoki): Hi Class and Professor,
Should the US Military or other US Federal agency conduct surveillance and collection within the United States, without a warrant or other legal means, at any time?
The answer is a resounding NO. The debate over whether the U.S. military or other federal agencies should conduct surveillance within the U.S. without a warrant is highly contentious, raising significant constitutional and ethical concerns. Unwarranted surveillance violates constitutional protections and threatens civil liberties. The National Security Agency’s (NSA) mass data collection program, revealed by Edward Snowden, highlights the dangers of unwarranted surveillance and the potential for misuse. The USA PATRIOT Act expanded the government’s surveillance powers, allowing broader data collection without traditional warrants under the Foreign Intelligence Surveillance Act (FISA). Recent disclosures by the Justice Department Inspector General underscore these worries. Michael Horowitz’s report on the FBI’s handling of the Trump-Russia investigation revealed significant errors and omissions in the FBI’s FISA applications (Washington Examiner, 2024). These findings emphasize the potential for abuse in the absence of rigorous oversight and legal protections.
What about outside of the United States at any time on American citizens?
Surveillance of U.S. citizens, both within the country and abroad, should always require a warrant to protect their rights. The Supreme Court has recognized that U.S. citizens have constitutional rights abroad (Reid v. Covert, 1957). Despite the Fourth Amendment’s limitations outside the U.S., U.S. citizens have constitutional rights overseas. Unauthorized surveillance can lead to privacy breaches and diminish trust in the government. While Executive Order 12333 (1981) aims to protect national security, it grants broad surveillance powers that can be exploited. Balancing national security and individual rights is crucial, and it is essential to ensure transparency, accountability, and compliance with constitutional principles to maintain trust and uphold democratic values.
Should the various law enforcement agencies found at state and local levels be able to conduct surveillance and collection within the United States when they have a warrant, but also be able to do it when they do not have a warrant?
State and local law enforcement bodies also grapple with reconciling effective law enforcement with respect for constitutional rights. The necessity for a warrant, grounded on probable cause and issued by an impartial judge, is a fundamental aspect of American legal safeguards against random government interference (Illinois v. Gates, 1983). Permitting law enforcement to carry out surveillance without a warrant weakens these safeguards and opens the door to significant power abuses. There exist situations, such as urgent cases, where the courts have acknowledged exceptions to the warrant requirement (Brigham City v. Stuart, 2006). These exceptions are strictly defined to ensure that pressing situations can be managed without infringing on constitutional rights. However, broadening these exceptions to permit routine warrantless surveillance by law enforcement would undermine fundamental civil liberties and establish a perilous precedent.
Reference
Brigham City v. Stuart, 547 U.S. 398 (2006).
Exec. Order No. 12333, 3 C.F.R. 200 (1981).
Washington Examiner. (2024). Of course the FBI abused FISA to surveil Carter Page; FISA has been a Fourth Amendment travesty from the start. https://www.washingtonexaminer.com/opinion/2138887/of-course-the-fbi-abused-fisa-to-surveil-carter-page-fisa-has-been-a-fourth-amendment-travesty-from-the-start
Oyatoki
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