NSA Policies and Privacy In 2006 USA TODAY reported that the National Security Agency (NSA) had

b een secretly collecting phone call records of American citizens. The purpose of this collection of phone records is to look for terrorist activity. We will ev aluate how the collection of phone records lines up with the policies of the NSA and how those policies affect the average American citizens. We will also look into the legality of these collection methods. Lastly we will look into the pr ivacy implications of the policies of the NSA. Origins of the NSA The National Security Agency was established on November 4, 1952 (Pre-195 2 Historical Timeline, 2009). Prior to the NSA there was the Armed Forces Securi ty Agency (AFSA). The ASFA was established on May 20, 1949 and was established to direct the communications intelligence and electronic intelligence activities of the military (The National Security Agency, 2000). The NSAs formation came afte r a report known as the "Brownell Committee Report," looked into the history of U.S. communications intelligence activities and discovered there was a need for greater coordination and direction at the national level in regards to intellige nce activities (The National Security Agency, 2000). After the NSA was formed the realization that complete control over all intelligence activities would be imp ossible due to the dependence on the military structures to man field stations. To help mitigate this flaw operational and technical control over all intellige nce activities was granted to the NSA (Burns, 1990). The NSA is a highly secret ive organization that only in recent times has had any amount of information abo ut them released. This is largely due to Congressional hearings and investigati ve research (The National Security Agency, 2000). The most recent exposure surrou nding the NSA is the release of information that the NSA is collecting phone rec ords of American citizens in an effort to look for terrorist activities. NSA Role and Responsibilities The NSA is tasked with leading the U.S. Government in cryptology that in cludes Signal Intelligence, Information Assurance, and Computer Network Operatio ns so that a decision advantage is gained for our nation and its allies in all c ircumstances (NSA/CSS Mission, Vision, Values, 2012). This process come about du e to Executive Order 12333, which was originally issues in December of 1981 and later amended in July of 2008. Some of the roles and responsibilities of the NS A according to the NSA website include: (NSA/CSS Mission, Vision, Values, 2012). Collect (including through clandestine means), process, analyze, produce, and di sseminate signals intelligence information and data for foreign intelligence and counterintelligence purposes to support national and departmental missions; Act as the National Manager for National Security Systems as established in law and policy, and in this capacity be responsible to the Secretary of Defense and to the Director, National Intelligence; Prescribe security regulations covering operating practices, including the trans mission, handling, and distribution of signals intelligence and communications s ecurity material within and among the elements under control of the Director of the National Security Agency, and exercise the necessary supervisory control to ensure compliance with the regulations. This was later amended in 2008 to include: (NSA/CSS Mission, Vision, Values, 2012 ). Align EO12333 with the Intelligence Reform and Terrorism Prevention Act of 2004; Implement additional recommendations of the 9/11 and WMD Commissions; Further integrate the Intelligence Community and clarify and strengthen the role of the DNI as the head of the Community; Maintain or strengthen privacy and civil liberties protections. Legal Surveillance In 1975, a Congressional hearing revealed that for a minimum of 20 years the NSA had been collecting international communications without a warrant whic h lead Congress to pass the Foreign Intelligence Surveillance Act (FISA) of 1978 (Cauley, 2006). FISA outlined the procedures that the U.S. government must fol low when engaging in electronic surveillance with our without a warrant. Sectio n 1801, subsection F of FISA defined electronic surveillance as the acquisition b

y an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acq uired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes. (50 USC 1801 Definitions, 2012). Section 1 801, subsection N of FISA further defined content as when used with respect to a communication, includes any information concerning the identity of the parties t o such communication or the existence, substance, purport, or meaning of that co mmunication. (50 USC 1801 Definitions, 2012). Based off the definition of electronic surveillance defined in FISA it c an be reasoned that the NSA is only able to obtain information if it is happenin g in real time and not based off of historical records. Being as how phone reco rds collected in real time does not contain personally identifiable information the NSA would not be considered to be in violation of FISA. FISA established ru les concerning the acquisition of information, either with a warrant or without a warrant. In addition FISA authorizes the President to conduct electronic surv eillance without a warrant for a period of one year provided the content of the information collected is between foreign powers, no information collected can be acquired when a U.S. citizen is involved, and the surveillance must meet the min imization procedures defined in Section 1801, subsection H (50 USC 1801 Definition s, 2012). Methods of Collecting Phone Records The common methods associated with collecting phone records are wiretaps , pen registers, and trap and trace devices. Wiretaps are defined as A concealed listening or recording device connected to a communications circuit. (The Free Dic tionary, 2012). The purpose of a wiretap is to obtain information without the kn owledge of the person or persons who are using that communications circuit. The re are strict rules attributed to a wiretap starting with the federal wiretap st atute passed in 1968. This statute requires that a wiretap order be obtained pr ior to the start of monitoring or recording of communications (Wiretapping Law Pr otections, 2012). It should also be noted that Under the Wiretap Act, although a wiretap order is needed to intercept your email and other electronic communicati ons, only your oral and wire communications that is, voice communications are co vered by the statute s exclusionary rule. So, for example, if your phone calls a re illegally intercepted, that evidence can t be introduced against you in a cri minal trial, but the statute won t prevent the introduction of illegally interce pted emails and text messages (Wiretapping Law Protections, 2012). Pen registers are defined as A device that decodes or records electronic impulses, allowing outgoing numbers from a telephone to be identified. (The Free d ictionary, 2012). Trap and trace devices are defined as A device used to record a nd trace all communication signals from a telecommunication system. (The Free Dict ionary, 2012). Typically pen registers and trap and trace devices are used in co njunction with one another. Pen registers will shows outgoing phone numbers whe re a trap and trace device will show incoming phone numbers. The Supreme Court d ecided in 1979, in the case of Smith v. Maryland, that because you knowingly exp ose phone numbers to the phone company when you dial them (you are voluntarily h anding over the number so the phone company will connect you, and you know that the numbers you call may be monitored for billing purposes), the Fourth Amendmen t doesn t protect the privacy of those numbers against pen/trap surveillance by the government. The contents of your telephone conversation are protected, but n ot the dialing information. (Pen Registers" and "Trap and Trace Devices"", 2012). In 2001 the Patriot Act was passed with the express purpose of being used to com bat terrorism. Under the Patriot Act the prerequisite that government prove tha t the suspect is an agent of foreign power is eliminated (The Free Dictionary, 201 2). The result of this allows the U.S. government to use pen registers and trap and trace devices without having to obtain permission prior to use regardless o f who the devices are to be used one be it a foreign national or a U.S. citizen. Ethics of Collecting Citizen Phone Records Collecting phone records from private citizens without probable cause is

ultimately protected by the 4th Amendment which states The right of the people t o be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but u pon probable cause, supported by Oath or affirmation, and particularly describin g the place to be searched, and the persons or things to be seized. (The United St ates Constitution, 2011). And due to this protection when USA TODAY reported tha t the NSA was collecting phone records concerning American citizens and claiming to use that information to fight terrorism the American Civil Liberties Union ( ACLU) filed a lawsuit against the federal government. The ACLU lawsuit was but one of numerous that was filed against the federal government. The ACLU lawsuit originally succeeded when a district court declared the NSAs collection of phone records was deemed unconstitutional; however in 2007 the original decision was overturned ("ACLU v. NSA: The Challenge to Illegal Spying, 2012). In 2008 the FI SA Amendment Act was passed by Congress which effectively killed all litigation against the federal government in regards to the NSA collecting phone records ab out private citizens. The FISA Amendment Act granted immunity to organizations that aided the NSA in the collection of phone records for the database that was created to fight terrorism. The issue at play with the federal government using the NSA to secretly collect phone records of its private citizens is it violated the constitutional rights of U.S. citizens covered by the 4th Amendment. In response to the lawsui ts that prevailed against the federal government for violating the constitutiona l rights of it citizens the FISA Amendment Act was passed. Since the act effect ively killed all litigation the actions of the NSA became legal. While the moni toring of communications of U.S. citizens has been given greater latitude it is not something that should be carried out without probable cause as dictated in t he 4th Amendment. Privacy Implications Since in recent time the federal government has passed laws that allow i ts agencies to essentially spy on it citizens privacy can no longer be taken for granted. As a security conscience citizen efforts should be made to ensure priv acy is maintained in all facets of everyday life. When using the telephone or c ell phone ensure to be mindful of your surroundings and take care in what is sai d via conversations or messages when using those devices, when using e-mail or s urfing the internet the same considerations should be taken as well. With the i ncrease of not only unscrupulous people trying to obtain information about a per sons life, but the federal government becoming involved in monitoring average U.S . citizens it is up to everyone to be security conscious and ensure that persona l information remains personal. Conclusion In conclusion the NSA technically violated the 4th Amendment rights of U .S. citizens by collecting phone records in an effort to fight terrorism. With the advent of lawsuits being filed against the federal government the FISA Amend ment Act was passed to make the actions of the NSA legal and be able to avoid li tigation at the same time. There is a need to ensure the safety of citizens and one could argue that the actions of the NSA are achieving just that. The bigges t problem is at what cost. The 4th Amendment ensures that U.S. citizens are fre e from unreasonable search and seizure against themselves and the current action s of the federal government violates this amendment. With that being said in an effort to protect the greater good some liberties must be given up. The questi on is just how much must be sacrificed to ensure the safety of society. This is sure to be a question that will be answered over the coming years.

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