Spying on Americans: the Legal Status of Emails

The recent news that the NSA is collecting information on Americans from nine internet sources has brought to the forefront a confrontation between traditional sources of information and the legal framework of the government's right to investigate individuals.

This topic has several main issues. At the top of the list is President Obama's outrageous statement that Americans may need to give up some freedom for security from terrorism. The president has no right to decide what degree of freedom Americans can have. The freedom Americans have is defined not by any one elected official but by the Constitution.

The Fourth Amendment of the Constitution has very precise language that directly applies to the NSA's seizure of personal information. The Fourth Amendment states: "The 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 places to be searched,, and the persons or things to be seized." The NSA's wide, unwarranted search of servers belonging to nine internet organizations is a clear violation of the Fourth Amendment. The main issue is the lack of specificity and lack of warrants for specific "persons or things to be seized."

That the president thinks it is acceptable to carry out these searches is particularly problematic, since his terrorism justification is challenged by the fact that the U.S. was warned by Russian intelligence in March 2011 that two Chechnyans were potentially planning terrorist acts against Americans but Obama's intelligence agencies refused to act on this very specific information.

In the past the primary source of personal information and communication were the telephone and postal service. In 1986 Congress passed the Electronic Communications and Privacy Act (ECPA). This Act states that any electronic surveillance or wiretapping must have the foreknowledge and approval of magistrates or federal judges and be very specific. The NSA's mining of nine internet sources is a violation of the ECPA.

The internet is now widely used to pay utility bills, make financial transactions, and personal communications via email. The internet has replaced the U.S. Postal Service as a way to conduct these personal business transactions and communications. Emails are relatively new and their legal status has yet to be properly defined by Congress. But one can view emails from two existing precedents: the Postal Service and Copyright Act. The postal service is a Federal service and its legal framework is clearly delineated in Title 39 of the U.S. Code. Stated briefly, it is a Federal crime to seize another person's mail: you don't have to read it. Emails are often called "letters" but Congress has yet to state whether these are de facto letters and are protected as well as postal service mail.

One can only wonder when the Supreme Court, which has ruled already that phone tapping must be court-ordered, will venture into the cyber world of data collection. It does not seem a far stretch to conclude that gathering emails is similar to wire tapping. These are also violations of the right to privacy.

The Copyright Act, Title 17, clearly defines what is a "work" and how it is protected by Federal law. It is interesting to note that any work is automatically protected by the Copyright Act the moment it is created. One does not need to file a copyright application. So if someone takes a photo with their smart phone, that photo is instantly copyrighted and technically, cannot be distributed by any means by anyone other than the person who created it. This includes electronic means, and any means that may be developed in the future. Copyright protection applies to all audio, video, photographic, and written means of expression. So anything the NSA seizes from internet sites is already protected by the Copyright Act. Not only is the NSA violating the privacy of individuals under the Fourth Amendment but the copyright act as well.

There is nothing in the Constitution that says any agency of the Federal government can seize personal property without a specific warrant, even if it is obtained through WiFi, from internet servers, or any other means. This leads to the important question: how does internet communication, and information individuals may post on Facebook, fit into existing Federal Copyright law, the ECPA, and other Federal laws and procedures?

The issue of privacy, derived from the Fourth Amendment, also comes into play. Privacy rights may be forfeited by individuals under well-defined conditions. Persons working for software companies may sign a nondisclosure statement that nothing they learn on their job can be given to another company. Yet this is still connected to the patent law: circuit designs and lines of code can be patented or copyrighted. So here there are precedents.

Thoughtful Americans should remember that Obama sued the state of Arizona for passing a law that allowed police to ask persons in the state what their citizenship status was. The president used his Justice Department to attack Arizona for asking for information, yet he uses the NSA to search and seize information on Americans and that is perfectly acceptable. This proves that President Obama is interested in protecting illegal immigrants: he respects their rights more than those of documented American citizens.

The idea that one can give up one's constitutional rights has been addressed before. The court has usually ruled that a forfeiture of privacy rights must be limited and very specific. One can, for example, sign a nondisclosure agreement as part of a contract. But that agreement is limited only to the contract, not all aspects of a person's life. And social media sites such as Facebook are so huge and so intrusive that it is impossible to limit the forfeiture.

The issue of whether information on the internet is private, and is protected by the Constitution's against search and seizure, needs to be clearly addressed by the U.S. Supreme Court. It would be difficult to rule that people who give information on Facebook are freely choosing to forfeit their right to privacy since Facebook may use the information in ways unknown to the subscribers.

And while the Democrats are seizing as much information as they can from phone records and emails, they still do not want to verify the status of voters with a voter I.D., or begin to identify all of the illegal immigrants in the country. Since these serve their political ends they are not only carefully protected but have been given illegal documents so they can avoid detection. Apparently it is not important to collect information from illegal immigrants.

The NSA's collection of internet and phone information finally brings to the forefront the issues relevant to the internet. Congress needs to precisely define whether an email is a protected personal communication or not, and if all photos and other files fall under the Copyright Act. Also, the idea that one can give up one's copyright and fourth amendment protections merely by signing onto Twitter or Facebook must be addressed.

If you experience technical problems, please write to helpdesk@americanthinker.com