Martini

Maryanne Martini
Padgett
English 102
April 14, 2016
Should Big Brother Always Be Watching?
Over two-hundred years a go there was no such thing as a light bulb much less an iPhone,
or a computer, or any other way to communicate other than a pen and a piece of paper. There
were no data clouds that hold millions of peoples personal information and there was definitely
not a way to hack into peoples telephones or emails. James Madison did not know about any of
these new forms of technology when constructing the Fourth Amendment, which is the only
amendment in the United States constitution that directly addresses privacy. The Fourth
Amendment states, "[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 (U.S. Constitution). This
amendment does not adequately protect the rights of those who use technology and have
different ways of storing their personal information. Edward Snowden revealed this to the world
when he exposed that the NSA was listening to phone calls and seeing recipients of emails of
everyday Americans. Apple, who creates half of the phones in citizens pockets today, does not
have the ability to reveal to the government their customers personal information whether that
person is a terrorist or not. To reform privacy demands the Electronic Communications Privacy
Act of 1986, that is supposed to protect our fourth amendment rights and keep law enforcement
in check, needs to be amended. In todays digital age, the privacy of United States citizens
should be a larger factor than the federal governments surveillance of data.

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When Edward Snowden revealed to the world that the American government had been
listening in on phone conversations and looking into the senders and recipients of emails of
everyday citizens the public was shocked. Before the Snowden leaks American citizens had no
idea they were being spied on by the government from their cell phones. Snowden was a former
CIA employee and government contractor who revealed that telecommunication companies had
been cooperating with the government to conduct secret surveillance programs to catch terrorists
(Cotton). Eric Cotton, a writer for Record Journal, analyzes how since Americans have received
this unsettling news consumers became more jealous of their privacy (Cotton). Recently a
federal appeals court ruled that the telephone metadata collection program is illegal under the
Patriot Act (Vogue). The court found that Section 215 of the US Patriot Act has for years been
secretly interpreted to authorize the collection of Americans phone records on an
unprecedented scale (Walpin). It was found that the NSA has repeatedly engaged in legal
violations in section 215 and other surveillance authorities (Leahy). Vogue writes that, the
Court did not address the larger question of whether the program is constitutional (Vogue).
While this phone program was reportedly only used for counter-terrorism investigation one
might be concerned over the fact that the government can see who American citizens are calling,
the length of the call, and the person who originated the call.
There are some people who believe that the government has every right to look into the
private lives of citizens. Gerald Walpin served as inspector general under President George W.
Bush and is the author of The Supreme Court vs. the Constitution. Walpin argues that the NSA
surveillance is necessary because it does not take away any of our constitutional rights as United
States citizens. The NSA is needed to prevent attacks such as 9/11 and the Boston Marathon
bombing from happening. The author argues that the NSA having telephone numbers and email

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addresses could determine whether someone is innocent or not. The author uses many examples
to back up his claims. The Federalist Papers, the bible of the constitutions meaning, warns of
those who take away rights of the people to oppose the governments efforts of defeating an
enemy that is trying to destroy us (Walpin). The author says this applies to everyone who is
against the NSA phone breech program. Walpin also says that the surveillance program is
constitutional because the Supreme Court has always held that such information like telephone
conversations and email addresses are not protected by the Fourth Amendment. Walpins
argument does not agree that the NSAs phone surveillance program is a breech of privacy for
United States citizens because he reads the constitution word for word and does not take into
consideration the changes that have happened over time. While the NSAs phone program could
be a measure of safety that could provide information for tracking terrorists, it should not come
before the privacy wanted by citizens.
An example of the government problem of not having standard digital privacy laws is a
recent court case that involves Apple and the FBI. This is the first of many issues that will
develop in the twenty-first century without set privacy laws put into place. A writer for the Hays
Daily News, Gene Policinski, says this case is the, first step in figuring out where new
boundaries that protect core freedoms will exist in a wireless, digital age (Policinski). Cotton
discusses the argument between Apple and the FBI that is about unlocking an iPhone that the
FBI has acquired during a recent case. Apple has recently updated their security systems so the
FBI needs the help of the company to crack the code to an iPhone. This change in the system that
protects the security of every person with an iPhone made it nearly impossible for hackers and
the FBI to get into the updated phones. Cotton says that Apple changed their security systems
after the NSAs reported telephone privacy breech and saw the spying as a marketing

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opportunity. The court order came after the FBI found the phone of a terrorist who shot and
killed fourteen people and injured twenty-two in San Bernardino, California (Cotton). Apple has
refused court orders to unlock the iPhone because Apple is fighting to protect the civil liberties
of its customers (Cotton). Apples CEO, Tim Cook, wrote a letter published to the Apple
website discussing the need for encryption and the San Bernardino Case. He writes, the U.S.
government has asked us for something we simply do not have, and something we consider too
dangerous to create. They have asked us to build a backdoor to the iPhone (Cook). A
backdoor or key to the security encryption of an iPhone does not exist today and if put in the
wrong hands would be detrimental to society and the safety of personal information. Apple is
refusing these claims against the All Writs Act, which provides that federal courts may order
anyone to help authorities investigate crimes (Cotton). Apple argues that the All Writs Act is not
as broad as the government claims and if Apple does this for the FBI it will have to comply with
other investigations. The All Writs Act is another piece of legislation that needs to be revised by
the Supreme Court to clarify the murky area of privacy laws that go with owning a piece of
technology.
As these sources reveal there are many problems that have been created today because of
new technology. The government and lawmakers do not have specific standards to follow when
deciding on legislation and deciding on cases. The Albany Law Journal of Science and
Technology published an article by Andrew Bagley that discusses the Fourth Amendment law
and how concepts of the law have different expectations of online privacy. While this is a broad
statement, the writer focuses in on the legal issues that have arisen following the NSA Terrorist
Surveillance Program. The subject of Bagleys article is Congress push to change the Electronic
Communications Privacy Act. This Act was enacted in 1986 before the time of iPhones and

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digital data storage. The specifics for the ECPA at the time it was created were standards for
law enforcement access to electronic communications and associated data, affording important
privacy protections to subscribers of emerging wireless and internet technologies (Bellia).
Technology has changed so much over the past twenty years that the needs for this kind of
doctrine have changed dramatically. There have been no revisions of the EPCA since 1986 and
as a result, it has been interpreted in different ways by the courts. Big businesses are affected by
privacy policies too and Google even chose to voluntarily provide data to the NSA with hopes
that it would boost its own security (Bagley). The country needs a doctrine that can protect the
huge amount of personal information that is made today by digital communication services.
While it sounds like this act needs to be put into place to keep the government in check it also
needs to be flexible enough so that the government can do its job too. This act needs to create a
balance of keeping personal information protected and letting the government track cybercriminals and sexual predators who are trying to seize this kind of information (Bellia). The
Digital Due Process Organization is working to reform the EPCA so it can provide stronger
privacy protections for communication. It is made up of a number of privacy advocates and
major companies that are working together to lobby to the courts about the issue.
Since the ECPA was created the changes in digital communication have been endless.
Email has become a staple in Americans professional and private lives and many people have
years of saved email that is stored on computers of service providers. GPS and mobile location
services have come so far that people can know where one is at any point in the day based on the
cell phones location. This location data is stored and saved in logs and files that can reveal a
persons movements which can be a real value for law enforcement. Cloud computing is
common within businesses that store important data in a cloud that makes it easier to share

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information. Social networking is perhaps the biggest digital communication development in the
past years that allow millions of people to share information with friends. All of this is important
because the EPCA does not have set standards for these important tools of communication. The
EPCA as it is now states that a document that is stored on a computer is protected by the warrant
requirement of the Fourth Amendment but the same document stored with a service provider or
in the cloud may not be subject to the warrant requirement (Bellia). There are no standards for
government or law enforcement access to location information on cellphones. Without reform,
records from email, social networking posts, cloud documents, cell phone location information,
and text messages that are older than one hundred and eighty days can be seized without a
warrant (Feltren). The solution to these unclear standards is to update the Electronic
Communications Privacy Act to set an understood set of rules for government and law
enforcement access to digital information.
In todays digital age of iPhones and iClouds, it is necessary that the privacy of United
States citizens is held at a higher standard than the federal governments surveillance of data.
Recent events such as the NSAs telephone breech and Apples want for privacy of its customers
indicates that there needs to be reform in privacy laws. The Electronic Communications Privacy
Act is a start to this reform but needs to be updated to keep up with the new technology that has
been created in the past twenty years. In a survey completed by the Pew Research Center, 93%
of Americans say that being in control of who can get information about them is important
(Madden). This reflection emphasizes the need for a change. The Fourth Amendment cannot be
the only law that the criminal justice system looks to for support for cases like Apple vs. the FBI.
The Fourth Amendment was not created in a time where terrorists are using iPhones and clouds
to plan their attacks. An American business should feel secure about the confidentiality of their

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emails or files that are stored with service providers. In order to have a safer, more secure digital
communications platform that Americans can trust with all of their personal information, the
Electronic Communications Privacy Act needs to be reformed to include the new technology that
is present today.

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Works Cited
Bagley, Andrew William. "Don't Be Evil: The Fourth Amendment in the Age of Google,
National Security, and Digital Papers and Effects." Albany Law Journal of Science &
Technology 21.1 (2011): 153-192.
Bellia, Patricia etc. "Digital Due Process: Who We Are." Digital Due Process: Who We Are.
Digital Due Process Coalition, n.d. Web. 05 Apr. 2016.
Chideya, Farai. "The Big Issues Of The 2016 Campaign." FiveThirtyEight. N.p., 19 Nov. 2015.
Cole, David. "Snowdens Vindication." Nation 300.22 (2015): 4. Academic Search Complete.
Cook, Tim. "Customer Letter - Apple." Apple. N.p., n.d. Web. 31 Mar. 2016.
Cotton, Eric. "Editorial - Apple vs. the FBI." Record-Journal (Meriden, CT) 29 Feb. 2016, Main:
A04. NewsBank.
Feltren, Emily, and The Aall Government Relations Committee. Reforms to the Electronic
Communications Privacy Act (n.d.): n. pag. AALL Government Relations Committee,
Mar. 2015.
Leahy, Patrick. "Should Spying on American Citizens Be Curtailed?" Congressional Digest.
N.p., Dec. 2015.
Madden, Mary, and Lee Rainie. "Americans' Attitudes About Privacy, Security and
Surveillance." Pew Research Center Internet Science Tech RSS. N.p., 20 May 2015.
Perez, Evan, and Tim Hume. "Apple Opposes Order to Hack Gunman's Phone." CNN. Cable
News Network, n.d.
Policinski, Gene. "Where are privacy, national security limits in new Digital Age?" Hays Daily
News, The (KS) 28 Feb. 2016, A: 04. NewsBank.
U.S. Constitution. Amend. VI.

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Vogue, Ariane De. "Court Rules NSA Program Illegal." CNN. Cable News Network, n.d.
Walpin, Gerald. "We Need NSA Surveillance." National Review Online. N.p., n.d. Web. 29 Mar.
2016.