When the terrorists attacked the United States on September
11, 2001, most of us knew that things would change in our nation. Where we once felt secure with oceans on both
our east and west coasts separating us from the rest of the world, we now know
the oceans no longer shield us from terrorism.
In the months that followed the government changed many things in an
attempt to improve the security of the citizens of our nation.
After witnessing the horrendous attacks of 9/11 most of us
were willing to accept certain enhanced security protocols such as increased
airport security because the terrorists were able to board the planes due to
lax security. However, as with many
programs initiated by the government, it may start with good intentions but
power hungry politicians and bureaucrats soon overstep their constitutional
bounds. In this instance, they have begun
to intrude into private areas of the lives of citizens in our country in direct
violation of the Constitution.
The National Security Agency (NSA) is responsible for
insuring the security of our country.
Their role in our government is constitutional for the Constitution does
give the Federal Government the duty of protecting our nation’s borders but
that power is limited in the Bill of Rights by the fourth amendment, which
protects citizens from warrantless searches or seizures of their property. To search or seize a citizen’s property, the
government is required to acquire a warrant from a court. (1)
Many believe the NSA’s PRISM program violated citizen’s
fourth amendment rights through the warrantless seizure of personal phone
calls, texts, and emails of citizens. The
government collects the information off the servers of cell phone and internet
providers. James Clapper, the director
of National Intelligence has stated that, “The Foreign Intelligence
Surveillance Court, which meets in secret, approves the information collection
and the providers know about it, Clapper said.
The decisions are based on ‘a written directive’ from Holder and
Clapper, the fact sheet said. Eleven
federal judges, appointed by the chief justice of the Supreme Court, sit on the
court.” (2)
This would constitute a legal search or seizure if the
providers were the owners of the information but the ownership of emails and
email addresses is still unclear.
Granted, the information from emails and cell phone conversations are
contained on the servers of providers so one could contend that the provider
owns the email or cell phone conversation.
However, the content of the email or cell phone conversations
contain the thoughts of the person sending the email, text, or making the cell
phone call. Therefore, just as the Post
Office cannot open and read our mail and the phone company cannot listen in on
conversations, one could also contend that the email or phone conversation
belongs to the sender. We can also
contend that since PRISM did not ask for permission from the sender or
initiator of the call before acquiring private phone records, their acquiring
these records constitutes an illegal and warrantless search or seizure.
As we can see, the legal question of who owns our emails and
cell phone conversations is unclear. Even
judges in court cases arguing ownership of emails seem uncertain how to rule as
in the case of Oswal v Carson. (3) This is why some in
government feel justified in acquiring these records in the interest of
national security while others feel that the conversations constitute speech
and are the property of the writer or speaker.
In the absence of any clear legislation or court ruling on
the issue of email, text, or cell phone call ownership, how are we to determine
who the government has to get permission from if they have probable cause
someone is communicating through email or their cell phone their plans to
attack our country. This is where we
turn to the Constitution for guidance.
The first amendment of the Constitution grants us freedom of
speech. It grants a person initiating a
conversation the freedom to express him or herself freely without having some
government official present to listen in.
At the time of the Constitutions writing, the only forms of
communication or speech were the spoken or written word using a pen and
paper. It was never the intent of the
writers of the Constitution that the government would have right to randomly
listen into spoken conversations because they got permission from the owner of
the airspace through which the words traveled.
Neither did they assume they could look at someone’s conversations
because they got permission from the owner of the paper the conversation was
written on. Therefore, we can assume
that the intention of the authors of the first amendment was that the owner of
written or verbal speech was the person initiating the conversation and thus is
protected by the first amendment of the Constitution.
Email, texting, and cell phones are just tools that improve
how we are able to communicate with each other.
Since they are just communication tools, they do not change the intent
of the authors of the first amendment.
It is therefore my opinion that our cell phone conversations, texts, and
emails are the property of the person initiating the conversation but what
about emails and phone conversations done while employed by someone else.
Since the email address and phone number we use while
working for someone else are owned by that organization, I believe they are the
property of the company we are working for.
This is why I always advise people not to conduct personal business
using your employer’s phone or email address.
This is why I believe the PRISM program is a violation of
our fourth amendment protection from unwarranted searches and seizures. Getting permission from providers that own
the servers the data is stored on is not an authorization to look at the emails,
texts, and cell phone conversations of private citizens if they do not have reason
to believe these conversations are plotting some illegal activity. These conversations represent speech between
two parties and are not only their property and thus protected by the fourth
amendment but are also free speech and covered by the first amendment as
well.
PRISM and programs like it are examples of a government
overstepping its constitutional boundaries.
Just because Congress has not passed legislation banning listening in on
cell phone conversations, texts, or emails does not mean they are free to do
whatever they want. The Constitution,
and especially The Bill of Rights, place limitations on what the government can
do. In the case of PRISM, the
Constitution protects citizens through the first and fourth amendments.
This does not mean the government is powerless to act when
they have evidence someone is plotting an attack on our country. It only means they have to go through the
proper channels of presenting their evidence and acquiring a warrant to tap
into that individual or groups emails, texts, or cell phone conversations. These channels are in place to allow the
government to fulfill its role of protecting the nation from attack while also
protecting the security individuals assume when having a private conversation
with someone.
1. Hillsdale College. The Constitution of the
United States of America. [book auth.] Hillsdale College. The U.S.
Constitution: A Reader. Hillsdale MI : Hillsdale College Press, 2012.
2. Leger, Donna
Leinwand. Parts of NSA's PRISM program declassified. www.usatoday.com. [Online]
USA Today, June 8, 2013. [Cited: June 18, 2013.]
http://www.usatoday.com/story/news/nation/2013/06/08/dni-declassifies-prism-data-collection-nsa-secret-program-obama/2403999/.
3. Shipp, Stephen B.
Who owns your emails? Are they property? stephenbshipp.wordpress.com. [Online]
April 2011, 2011. [Cited: July 26, 2013.]
http://stephenbshipp.wordpress.com/2011/04/29/who-owns-your-emails-are-they-property/.
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