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From a very early age, perhaps the age of five or six, I knew that when I grew up I should be a writer. Between the ages of about seventeen and twenty-four I tried to abandon this idea, but I did so with the consciousness that I was outraging my true nature and that sooner or later I should have to settle down and write books.

I was the middle child of three, but there was a gap of five years on either side, and I barely saw my father before I was eight. For this and other reasons I was somewhat lonely, and I soon developed disagreeable mannerisms which made me unpopular throughout my schooldays. I had the lonely child's habit of making up stories and holding conversations with imaginary persons, and I think from the very start my literary ambitions were mixed up with the feeling of being isolated and undervalued. I knew that I had a facility with words and a power of facing unpleasant facts, and I felt that this created a sort of private world in which I could get my own back for my failure in everyday life. Nevertheless the volume of serious - i.e. seriously intended - writing which I produced all through my childhood and boyhood would not amount to half a dozen pages. I wrote my first poem at the age of four or five, my mother taking it down to dictation. I cannot remember anything about it except that it was about a tiger and the tiger had 'chair-like teeth' - a good enough phrase, but I fancy the poem was a plagiarism of Blake's 'Tiger, Tiger'. At eleven, when the war or 1914-18 broke out, I wrote a patriotic poem which was printed in the local newspaper, as was another, two years later, on the death of Kitchener. From time to time, when I was a bit older, I wrote bad and usually unfinished 'nature poems' in the Georgian style. I also attempted a short story which was a ghastly failure. That was the total of the would-be serious work that I actually set down on paper during all those years.

However, throughout this time I did in a sense engage in literary activities. To begin with there was the made-to-order stuff which I produced quickly, easily and without much pleasure to myself. Apart from school work, I wrote vers d'occasion, semi-comic poems which I could turn out at what now seems to me astonishing speed - at fourteen I wrote a whole rhyming play, in imitation of Aristophanes, in about a week - and helped to edit a school magazines, both printed and in manuscript. These magazines were the most pitiful burlesque stuff that you could imagine, and I took far less trouble with them than I now would with the cheapest journalism. But side by side with all this, for fifteen years or more, I was carrying out a literary exercise of a quite different kind: this was the making up of a continuous 'story' about myself, a sort of diary existing only in the mind. I believe this is a common habit of children and adolescents. As a very small child I used to imagine that I was, say, Robin Hood, and picture myself as the hero of thrilling adventures, but quite soon my 'story' ceased to be narcissistic in a crude way and became more and more a mere description of what I was doing and the things I saw. For minutes at a time this kind of thing would be running through my head: 'He pushed the door open and entered the room. A yellow beam of sunlight, filtering through the muslin curtains, slanted on to the table, where a match-box, half-open, lay beside the inkpot. With his right hand in his pocket he moved across to the window. Down in the street a tortoiseshell cat was chasing a dead leaf', etc. etc. This habit continued until I was about twenty-five, right through my non-literary years. Although I had to search, and did search, for the right words, I seemed to be making this descriptive effort almost against my will, under a kind of compulsion from outside. The 'story' must, I suppose, have reflected the styles of the various writers I admired at different ages, but so far as I remember it always had the same meticulous descriptive quality.

When I was about sixteen I suddenly discovered the joy of mere words, i.e. the sounds and associations of words. The lines from Paradise Lost -

So hee with difficulty and labour hard
Moved on: with difficulty and labour hee.

which do not now seem to me so very wonderful, sent shivers down my backbone; and the spelling 'hee' for 'he' was an added pleasure. As for the need to describe things, I knew all about it already. So it is clear what kind of books I wanted to write, in so far as I could be said to want to write books at that time. I wanted to write enormous naturalistic novels with unhappy endings, full of detailed descriptions and arresting similes, and also full of purple passages in which words were used partly for the sake of their own sound. And in fact my first completed novel, Burmese Days, which I wrote when I was thirty but projected much earlier, is rather that kind of book.

I give all this background information because I do not think one can assess a writer's motives without knowing something of his early development. His subject matter will be determined by the age he lives in - at least this is true in tumultuous, revolutionary ages like our own - but before he ever begins to write he will have acquired an emotional attitude from which he will never completely escape. It is his job, no doubt, to discipline his temperament and avoid getting stuck at some immature stage, in some perverse mood; but if he escapes from his early influences altogether, he will have killed his impulse to write. Putting aside the need to earn a living, I think there are four great motives for writing, at any rate for writing prose. They exist in different degrees in every writer, and in any one writer the proportions will vary from time to time, according to the atmosphere in which he is living. They are:

(i) Sheer egoism. Desire to seem clever, to be talked about, to be remembered after death, to get your own back on the grown-ups who snubbed you in childhood, etc., etc. It is humbug to pretend this is not a motive, and a strong one. Writers share this characteristic with scientists, artists, politicians, lawyers, soldiers, successful businessmen - in short, with the whole top crust of humanity. The great mass of human beings are not acutely selfish. After the age of about thirty they almost abandon the sense of being individuals at all - and live chiefly for others, or are simply smothered under drudgery. But there is also the minority of gifted, willful people who are determined to live their own lives to the end, and writers belong in this class. Serious writers, I should say, are on the whole more vain and self-centered than journalists, though less interested in money.

(ii) Aesthetic enthusiasm. Perception of beauty in the external world, or, on the other hand, in words and their right arrangement. Pleasure in the impact of one sound on another, in the firmness of good prose or the rhythm of a good story. Desire to share an experience which one feels is valuable and ought not to be missed. The aesthetic motive is very feeble in a lot of writers, but even a pamphleteer or writer of textbooks will have pet words and phrases which appeal to him for non-utilitarian reasons; or he may feel strongly about typography, width of margins, etc. Above the level of a railway guide, no book is quite free from aesthetic considerations.

(iii) Historical impulse. Desire to see things as they are, to find out true facts and store them up for the use of posterity.

(iv) Political purpose. - Using the word 'political' in the widest possible sense. Desire to push the world in a certain direction, to alter other peoples' idea of the kind of society that they should strive after. Once again, no book is genuinely free from political bias. The opinion that art should have nothing to do with politics is itself a political attitude.

It can be seen how these various impulses must war against one another, and how they must fluctuate from person to person and from time to time. By nature - taking your 'nature' to be the state you have attained when you are first adult - I am a person in whom the first three motives would outweigh the fourth. In a peaceful age I might have written ornate or merely descriptive books, and might have remained almost unaware of my political loyalties. As it is I have been forced into becoming a sort of pamphleteer. First I spent five years in an unsuitable profession (the Indian Imperial Police, in Burma), and then I underwent poverty and the sense of failure. This increased my natural hatred of authority and made me for the first time fully aware of the existence of the working classes, and the job in Burma had given me some understanding of the nature of imperialism: but these experiences were not enough to give me an accurate political orientation. Then came Hitler, the Spanish Civil War, etc. By the end of 1935 I had still failed to reach a firm decision. I remember a little poem that I wrote at that date, expressing my dilemma:

The Spanish war and other events in 1936-37 turned the scale and thereafter I knew where I stood. Every line of serious work that I have written since 1936 has been written, directly or indirectly, against totalitarianism and for democratic socialism, as I understand it. It seems to me nonsense, in a period like our own, to think that one can avoid writing of such subjects. Everyone writes of them in one guise or another. It is simply a question of which side one takes and what approach one follows. And the more one is conscious of one's political bias, the more chance one has of acting politically without sacrificing one's aesthetic and intellectual integrity.

What I have most wanted to do throughout the past ten years is to make political writing into an art. My starting point is always a feeling of partisanship, a sense of injustice. When I sit down to write a book, I do not say to myself, 'I am going to produce a work of art'. I write it because there is some lie that I want to expose, some fact to which I want to draw attention, and my initial concern is to get a hearing. But I could not do the work of writing a book, or even a long magazine article, if it were not also an aesthetic experience. Anyone who cares to examine my work will see that even when it is downright propaganda it contains much that a full-time politician would consider irrelevant. I am not able, and do not want, completely to abandon the world view that I acquired in childhood. So long as I remain alive and well I shall continue to feel strongly about prose style, to love the surface of the earth, and to take a pleasure in solid objects and scraps of useless information. It is no use trying to suppress that side of myself. The job is to reconcile my ingrained likes and dislikes with the essentially public, non-individual activities that this age forces on all of us.

It is not easy. It raises problems of construction and of language, and it raises in a new way the problem of truthfulness. Let me give just one example of the cruder kind of difficulty that arises. My book about the Spanish civil war, Homage to Catalonia, is of course a frankly political book, but in the main it is written with a certain detachment and regard for form. I did try very hard in it to tell the whole truth without violating my literary instincts. But among other things it contains a long chapter, full of newspaper quotations and the like, defending the Trotskyists who were accused of plotting with Franco. Clearly such a chapter, which after a year or two would lose its interest for any ordinary reader, must ruin the book. A critic whom I respect read me a lecture about it. 'Why did you put in all that stuff?' he said. 'You've turned what might have been a good book into journalism.' What he said was true, but I could not have done otherwise. I happened to know, what very few people in England had been allowed to know, that innocent men were being falsely accused. If I had not been angry about that I should never have written the book.

In one form or another this problem comes up again. The problem of language is subtler and would take too long to discuss. I will only say that of late years I have tried to write less picturesquely and more exactly. In any case I find that by the time you have perfected any style of writing, you have always outgrown it. Animal Farm was the first book in which I tried, with full consciousness of what I was doing, to fuse political purpose and artistic purpose into one whole. I have not written a novel for seven years, but I hope to write another fairly soon. It is bound to be a failure, every book is a failure, but I do know with some clarity what kind of book I want to write.

Looking back through the last page or two, I see that I have made it appear as though my motives in writing were wholly public-spirited. I don't want to leave that as the final impression. All writers are vain, selfish, and lazy, and at the very bottom of their motives there lies a mystery. Writing a book is a horrible, exhausting struggle, like a long bout of some painful illness. One would never undertake such a thing if one were not driven on by some demon whom one can neither resist nor understand. For all one knows that demon is simply the same instinct that makes a baby squall for attention. And yet it is also true that one can write nothing readable unless one constantly struggles to efface one's own personality. Good prose is like a windowpane. I cannot say with certainty which of my motives are the strongest, but I know which of them deserve to be followed. And looking back through my work, I see that it is invariably where I lacked a political purpose that I wrote lifeless books and was betrayed into purple passages, sentences without meaning, decorative adjectives and humbug generally.

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From a very early age, perhaps the age of five or six, I knew that when I grew up I should be a writer. Between the ages of about seventeen and twenty-four I tried to abandon this idea, but I did so with the consciousness that I was outraging my true nature and that sooner or later I should have to settle down and write books.

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En række kilder til den amerikanske overvågning af borgerne fra Nixon og frem

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In the news
"For Some, Spying Controversy Recalls a Past Drama"
By Scott Shane
New York Times
February 6, 2006

"Spirited wiretap debate of '76"
By Tom Brune
Newsday
February 5, 2006

By Margaret Ebrahim"Papers: Ford White House Weighed Wiretaps"

Associated Press (via WashingtonPost.com)
February 4, 2006

Related posting
The National Security Agency Declassified
Note: The following documents are in PDF format.

Washington, D.C., February 4, 2006 - Despite objections from then-Secretary of Defense Donald Rumsfeld and then-CIA director George H. W. Bush, President Gerald Ford came down on the side of a proposed federal law to govern wiretapping in 1976 instead of relying on the "inherent" authority of the President because the "pros" outweighed the "cons," according to internal White House documents obtained through the Freedom of Information Act and posted on the Web today by the National Security Archive at George Washington University.

White House counsel Philip Buchen described a Situation Room meeting on March 12, 1976 with Rumsfeld, Secretary of State Henry Kissinger, Bush, national security adviser Brent Scowcroft, and attorney general Edward Levi (notably absent was White House chief of staff Richard Cheney) in which Buchen's and Levi'soutline of the advantages of a wiretapping law reduced the "adamant opposition" to neutrality, allowing Levi to testify before Congress in favor of a wiretapping statute on March 29, 1976.

Buchen's talking points said the proposed law (ultimately enacted as the Foreign Intelligence Surveillance Act of 1978, or FISA) "avoids likelihood that ... courts will eventually decide a warrant is required," "eliminates question of validity of evidence obtained," "protects cooperating communications carriers," and would not "materially inhibit surveillance of these kinds of targets."

On the "cons" side of his talking points, Buchen described exactly the arguments against such a law that the Bush administration has now adopted as the basis for its warrantless wiretapping: "requires resort to the judiciary for exercise of an inherent Executive power" and "could result in troublesome delays or even a denial of authority in particular cases."

"Yogi Berra was right, the current wiretapping debate is déjà vu all over again, except that President Bush has come down on the con side against the law," remarked Thomas Blanton, director of the National Security Archive.

Today's posting also includes the TOP SECRET Justice Department reports in June 1976 andMarch 1977 on the potential criminal liability of the National Security Agency and the Central Intelligence Agency for operations such as SHAMROCK (interception of all international cable traffic from 1945 to 1975) and MINARET (use of watchlists of U.S. dissidents and potential civil disturbers to provide intercept information to law enforcement agencies from 1969 to 1973). Justice released these reports to author James Bamford under the Freedom of Information Act in the late 1970s, but in 1981, the NSA persuaded Justice to threaten Bamford with prosecution for "possession of classified information," a threat that helped Bamford's book The Puzzle Palace become a best-seller.

The Justice Department in the reports ultimately recommended against prosecution, concluding that "If the intelligence agencies possessed too much discretionary authority with too little accountability, that would seem to be a 35-year failing of Presidents and the Congress rather than the agencies" (p. 171, 30 June 1976).

"Federal employees who are carrying out President Bush's warrantless wiretapping will be especially interested in the Justice Department's 1976 assessment of whether such wiretapping makes them criminally liable," commented Blanton. "One of the main reasons the Ford administration supported having a law that governed wiretapping was that such a law would protect government officials and the telecom companies as long as they followed the law."

The Archive's posting, compiled by senior fellow Dr. Jeffrey Richelson (author of the forthcoming book, Spying on the Bomb), includes key historic documents brought to light by the Church Committee investigations of intelligence abuses, and a series of National Security Agency documents from the 1990s released under the Freedom of Information Act that describe the limits imposed by FISA and the Fourth Amendment on surveilling U.S. persons.

The posting also includes two important studies by the now-defunct Office of Technology Assessment in 1985 and 1995 on the challenges of electronic surveillance and civil liberties in a digital age, as well as a wide range of key documents from the current wiretapping debate, as featured on the www.cnss.org/fisa web site (complete legislative history of the FISA), thewww.fas.org web site (the Project on Government Secrecy has published the relevant Congressional Research Service studies, among other important documents), andwww.epic.org which published the FBI's 2002 guide,"What do I have to do to get a FISA?"
Electronic Surveillance
From the Cold War to Al-Qaeda
National Security Archive Electronic Briefing Book No. 178
Edited by Jeffrey Richelson and Thomas Blanton

On December 16, 2005, The New York Times published a front-page story revealing that months after Al-Qaeda's September 11, 2001 attacks on the United States, President George W. Bush formally authorized the National Security Agency to monitor telephone conversations and e-mails of Americans and other individuals, originating in the United States, without the court-approved warrants usually required for domestic surveillance. The monitoring program was reported to consist of targeting the telephone and e-mail communications of hundreds and perhaps thousands of people inside the United States - with about 500 being monitored at any one time. Purely domestic communications, according to the story, were still monitored only after a warrant was obtained from the Foreign Intelligence Surveillance Court (FISC). ( Note 1)

Further reporting, since the initial revelation by the Times, has added to information and claims about the program. It has become known that NSA began the warrantless eavesdropping effort prior to receiving formal approval from President Bush; that the operation involved NSA obtaining the cooperation of American telecommunication companies, which allowed the agency to tap "directly into some of the American telecommunication system's main arteries"; that the information gathered was turned over to other agencies, including the Defense Intelligence Agency, which compared the information with data from other sources; and some purely domestic communications (which both originated and terminated in the United States) were accidentally intercepted. ( Note 2)

The revelations about the eavesdropping program have produced numerous editorials (for and against), discussion of why the administration decided to by-pass the surveillance court, questions from the judges on the Foreign Intelligence Surveillance Court, criticism and support of the program from members of Congress on both sides of the aisle, and defense of the program, in oral and written form, from the president, vice-president, senior intelligence officials, and the Justice Department. The legality of the program, the adequacy of administration briefings to members of Congress, and the program's effectiveness have been challenged and defended. Two inquiries are planned or in progress-a Congressional inquiry as well as investigation by NSA's inspector general-and two lawsuits have been filed demanding that the program he halted immediately. ( Note 3)

The controversy surrounding the program is not the first controversy concerning whether U.S. signals intelligence and electronic surveillance activities might compromise the Fourth Amendment rights of U.S. persons. ( Note 4) In the years immediately prior to 9/11, press coverage of the NSA's ECHELON program-the placement of computer software at selected satellite ground stations operated by the NSA and key allies that allowed keyword sorting of some of the international communications relayed through commercial communications satellites and intercepted at those ground stations-resulted in concern that the privacy of Americans (as well as foreign nationals) would be sacrificed for the needs of U.S. foreign intelligence collection. ( Note 5)

In the mid-1970s, several decades before ECHELON became an issue, as a result of a Senate investigation of intelligence community activities, it had been revealed that NSA had been conducting two programs of questionable propriety. One, SHAMROCK, originated in the days just after the conclusion of the Second World War. It involved U.S. communications companies giving NSA access to the cable traffic passing through the companies' facilities. The second, MINARET, created a watch list of U.S. persons-including military deserters and those involved in civil disturbances and antiwar movements and demonstrations-whose communications were to be monitored. Included on the watch list were a number of anti-war activists, including Joan Baez, Jane Fonda and Dr. Benjamin Spock. ( Note 6)

The concern over NSA's domestic intelligence activities resulted in the 1978 passage of the Foreign Intelligence Surveillance Act (FISA). The Act established the three-judge Foreign Intelligence Surveillance Court to review applications for monitoring the communications (at the time, almost exclusively conventional telephone communications) of U.S. persons suspected of involvement in espionage or terrorist activities. It also created a review process in the event the U.S. government was displeased with the court's decision.

The requirement to obtain court-orders for wiretaps of U.S. persons did not prevent NSA from intercepting the communications of Americans when the intercept was the result of targeting a non-U.S. person at a communications node outside of the United States - an activity whose legality survived a challenge before the Supreme Court. But NSA operated under restrictions concerning how much information about the American participating in the intercepted conversation could be incorporated in intelligence reports or employed for law-enforcement purposes. In many cases the name or other identifying information would have to be removed and replaced by a term such as "U.S. person." Such restrictions were first codified in the 1980 United States Signals Intelligence Directive "Limitations and Procedures in Signals Intelligence Operations of the USSS" (USSID 18), which was updated in 1993. ( Note 7)

The collection of documents concerning U.S. electronic surveillance activities presented here stretch from the later Cold War years to today. Among the documents included are memoirs of the SHAMROCK investigation, pre-9/11 NSA memos on electronic surveillance, several expressions of Congressional concern concerning the current warrantless eavesdropping program, a variety of administration defenses of the program, and several Congressional Research Service analyses of the legality of the program and the adequacy of administration briefings to Congress.

Documents

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Source: Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, Document 1: National Security Agency, Charter for Sensitive SIGINT Operation MINARET, July 1, 1969. Classification Not Available
The National Security Agency and Fourth Amendment Rights (Washington, D.C.: U.S. Government Printing Office, 1976) via http://www.aarclibrary.org

This memo, from an assistant director of NSA, establishes the MINARET program and notes that it specifically includes communications "concerning individuals or organizations involved in civil disturbances, anti-war movements/demonstrations and military deserters involved in anti-war movements" and information on organizations or governments that might influence them. It also notes that an important reason for establishing the program is to restrict knowledge that such information is being collected and processed by NSA.

Source: Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, Document 2: Vice Admiral Noel Gayler, Director, National Security Agency,Memorandum for the Secretary of Defense, The Attorney General, January 26, 1971. Classification Not Available
The National Security Agency and Fourth Amendment Rights (Washington, D.C.: U.S. Government Printing Office, 1976) via http://www.aarclibrary.org

The director of NSA prepared this memo following a meeting with the Attorney General and Secretary of Defense, spelling out "the agreed ground rules on NSA contributions to intelligence bearing on domestic problems." Specific topics covered include the character of the NSA activity, as well as the source of intercepted communications, the operations scope, and procedures to be followed.

Source: Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, Document 3: Attorney General Elliot Richardson, Letter, to Lt. General Lew Allen Jr., Director National Security Agency, October 1, 1973. Classification Not Available
The National Security Agency and Fourth Amendment Rights (Washington, D.C.: U.S. Government Printing Office, 1976) via http://www.aarclibrary.org

In this letter the Attorney General informs the director of NSA that he has recently discovered NSA had been disseminating intelligence to the FBI and Secret Service obtained through NSA electronic surveillance operations, conducted in response to requests from those agencies. Richardson goes on to request that NSA refrain from providing further intercept-derived domestic intelligence to other agencies until he further considers the implication of a recent court decision.

Source: Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, Document 4: Lt. Gen. Lew Allen Jr., Director, National Security Agency,Letter, to Honorable Elliot L. Richardson, October 4, 1973. Classification Not Available
The National Security Agency and Fourth Amendment Rights (Washington, D.C.: U.S. Government Printing Office, 1976) via http://www.aarclibrary.org

In his response to the Attorney General's October 1 letter ( Document 3), NSA director Allen tries to alleviate Richardson's concerns. He notes that the messages passed on to organizations such as the FBI and Secret Service are based on a watch list, and are "always by-products of the foreign communications we intercept in the course of our . . . foreign intelligence activities" -- but that he has directed that, pending legal advice, no further information be disseminated to the FBI and Secret Service.

Document 5: Gerald R. Ford, Memorandum for the Attorney General, December 19, 1974. Top Secret
Source: Gerald R. Ford Library

In this memo, President Gerald Ford "reaffirms and renews" the delegation of power to the Attorney General to approve, "without prior judicial warrant," specific electronic surveillance within the United States. The memo gives standards and procedures for the exercise of that authority, including specification that the electronic surveillance is necessary for one of four reasons, and that the subject of the surveillance "is assisting a foreign power or foreign-based political group, or plans unlawful activity directed against a foreign power or foreign-based political group." It does not impose any restrictions based on the nationality or residence of the target of the proposed surveillance.

Document 6: Philip W. Buchen, Memorandum for: The President, Subject: Warrantless Electronic Surveillance, August 13, 1975. Top Secret
Source: Gerald R. Ford Library

This memo to President Ford focuses on the concerns of different departments with the provisions of President Ford's December 19 memorandum and the impact of a June 23, 1975 U.S. Court of Appeals for the District of Colombia decision. The appeals court reversed a lower court decision and declared unconstitutional warrantless electronic surveillance of the Jewish Defense League (JDL), despite the League's involvement in violent harassment of foreign government officials, on the grounds that the JDL was a domestic organization and was not the agent of, or acting in collaboration with, a foreign power.

Document 7: Philip W. Buchen, Memorandum for: The President, Subject: Warrantless Electronic Surveillance, January 12, 1976. Top Secret/Sensitive
Document 7 [Tab C]: Edward H. Levi,Memorandum for: The President, January 6, 1976. Top Secret
Document 7 [Tab D draft]:Memorandum for: The Attorney General, undated draft. Top Secret
Document 7 [Tab D final]: President Gerald R. Ford,Memorandum for: The Attorney General, January 12, 1976. Top Secret
Source: Gerald R. Ford Library, Philip Buchen Files, Box No. 26, "National Security Advisor Chronological File"

Tab B to the January 12 memo remains classified and is the subject of a declassification review request by the National Security Archive.

In a series of several memos between the Ford White House and the Department of Justice, dated late 1974 to early 1976, the administration debated the legality of warantless electronic surveillance in the U.S. The January 12 memo contained several attachments, including the December 19, 1974 memo ( Document 5), in which the president endorsed the power of the Attorney General, by delegation, to conduct such warrantless surveillance.

A January 6, 1976 memo from the AG (at Tab C) referred to two existing National Security Agency operations: (1) "the monitoring of the Soviets' interception of American telephone calls," and (2) "the direct interception of radio communications between terminals abroad and brtween a terminal in the United States and a terminal abroad." The memo states that DOJ had been "reviewing" these operations and had developed strict minimization procedures for the first operation which would "bring the operation clearly within the reasonableness requirement of the Fourth Amendment" by limiting retention and dissemination of information collected. Despite the December 19, 1974 delegation of authority to the AG, Levi nonetheless sought the president's "confirmation" of his interpretation of that memo before authorizing the specified surveillance operations. Questions about the second surveillance program remained unresolved.

Finally, Buchen attached at Tab D a response memo to the Attorney General, which he recommended the President signed. The memo, "drafted by the Attorney General and approved by the Secretary of Defense" as well as by National Security Adviser Brent Scowcroft, states that the referenced NSA surveillance operation was properly subject to the December 19 delegation and could therefore be approved by the AG with "such additional safeguards concerning minimization and subsequent use as the special nature of those activities may in [his] opinion require." A final version of the memo, dated January 12, 1976, includes revised language directing the AG to communicate to the president any decision to withhold or terminate his authorization for any foreign intelligence surveillance operations; this version bears President Ford's signature.

Document 8: Philip W. Buchen, Memorandum for: The President, Subject: Legislation on Electronic Surveillance for Foreign Intelligence Purposes, March 15, 1976. Top Secret
Document 8 [Tab 1]: Philip W. Buchen,Talking Points, Meeting: March 12, 1976, at 10:30 a.m. in White House Situation Room, Subject: Legislation on Electronic Surveillance for Foreign Intelligence Purposes, March 12, 1976
Source: Gerald R. Ford Library, Presdiential Handwriting File, Box No. 31, "National Security Intelligence"

Tab II to the March 15 memo remains classified and is the subject of a pending declassification review request by the National Security Archive.

After much debate, the Ford administration in 1976 decided to support legislation requiring a warrant for the government to conduct electronic surveillance within the U.S. for foreign intelligence purposes, according to a memorandum prepared for President Ford by his counsel, Philip Buchen. "In an effort to resolve ... differences" among the key players in the administration on the matter, Buchen and Counselor to the President Jack Marsh convened a meeting on March 12, 1976 in the White House situation room; in attendance were Secretary of State Henry Kissinger, Secretary of Defense Donald Rumsfeld, National Security Advisor Brent Scowcroft, CIA Director George Bush, and Attorney General Ed Levi. White House Chief of Staff Dick Cheney was notably absent from this meeting. After a "lengthy discussion," Buchen was satisfied that "the others had a better understanding as to why" he, Marsh, and Levi favored the legislation as drafted, and he "detect[ed] no adamant opposition" remaining from "those who had previously questioned aspects of the proposed legislation." Congress ultimately followed the administration's recommendation when it enacted FISA in 1978.

In accompanying talking points prepared for the meeting, Buchen outlined the pros and cons of the statutory approach. In particular, he favored the requirement of a warrant for surveillance because such an approach "[a]voids likelihood that in absence of legislation, courts will eventually decide a warrant is required in such cases," "[e]liminates question of validity of evidence obtained," "[p]rotects cooperation communications carriers and landlords and protects against charges of criminal trespasses," and "[a]voids having legislation which is designed solely to permit [redacted] when such activities are relatively a minor portion of the electronic surveillance program and key members of the Senate Judiciary Committee want the legislation to include [redacted] surveillance"; moreover, "[t]he stated tests for obtaining a warrant are not of a kind which will materially inhibit surveillance of these kinds of targets." Anticipating counter-arguments, the document presents potential challenges to the legislation as drafted, including that it "[u]nnecessarily requires resort to the judiciary for exercise of an inherent Executive power, especially in cases where only communications of [redacted] are involved"; "[m]akes warrants mandatory even in the area of communications [redacted] that are not of significant concern to the Congress, when warrants in cases [redacted] might better be made optional in the discretion of the Executive"; and "[c]ould result in troublesome delays or even a denial of authority in particular cases." He also weighs the specifics of the test on which decisions to grant warrants would be based.

On March 29-30, 1976, Attorney General Levi testified before the Senate Judiciary Committee < http://www.cnss.org/fisa032976.pdf> in support of the Foreign Intelligence Surveillance Act.

Source: James Bamford, Freedom of Information Act Request. See Bamford, "Big brother is listening: Why this article will be closely read at the National Security Agency," Document 9a: Department of Justice, Report on the Inquiry into CIA-Related Electronic Surveillance Activities, June 30, 1976. Top Secret
Washington Post Magazine, December 4, 1983, p. 34. Document 9b: Department of Justice, George W. Calhoun, Chief, Special Litigation, Memorandum for: Robert L. Keuch, Deputy Assistant Attorney General, Subject: Prosecutive Summary, March 4, 1977. Top Secret.

These two documents report on the findings of a Department of Justice inquiry conducted to determine if criminal prosecutions of government personnel were warranted based on their conduct of electronic surveillance. The report addressed the findings of the Rockefeller Commission (on CIA Activities), and examined a variety of CIA and NSA eavesdropping operations, purported sources of authority for the operations, possible violations of law, and possible defenses. The Justice Department in the reports ultimately recommended against prosecution, concluding that "If the intelligence agencies possessed too much discretionary authority with too little accountability, that would seem to be a 35-year failing of Presidents and the Congress rather than the agencies" (p. 171, 30 June 1976). Justice released these reports to author James Bamford under the Freedom of Information Act at the end of the Carter administration, but in 1981, the NSA persuaded Justice to threaten Bamford with prosecution for "possession of classified information" if he did not return the documents, a threat that helped Bamford's book The Puzzle Palace become a best-seller.

Source: Center for National Security Studies, Foreign Intelligence Surveillance Act, Legislative History, at Document 10 : U.S. Congress, Foreign Intelligence Surveillance Act, 1978. Unclassified
http://www.cnss.org/fisa.htm.

In response to revelations concerning the MINARET and SHAMROCK programs, Congress passed this act to codify the process of authorizing electronic surveillance for foreign intelligence purposes. It created the Foreign Intelligence Surveillance Court and defined its responsibilities, specified the process for obtaining warrants, and established a court of review.

In this executive order, President Carter authorizes the Attorney General to approve warrantless electronic surveillance in order to obtain foreign intelligence if the Attorney General makes the certifications required according to the Foreign Intelligence Surveillance Act-that the means of communications being used are exclusively between or among foreign powers or the objective is collect technical intelligence from property or premises under the "open and exclusive" control of a foreign power, and that there is no substantial likelihood that the surveillance will acquire the contents of any communication involving a United States person.

This report, by the now-defunct Congressional Office of Technology Assessment (OTA), examines how changes in technology-including the introduction of cordless and cellular telephones -- would or could impact the opportunities for and vulnerabilities to electronic surveillance, and the consequences for civil liberties.

Document 13a: National Security Agency, Foreign Intelligence Surveillance Act, no date. For Official Use Only
Document 13b: National Security Agency,The Five Electronic Surveillance Questions, no date. Top Secret
Source: Freedom of Information Act Request

These undated documents (from sometime in the 1990s), provide a brief summary of key questions involved in implementation of the FISA. Document 11a distinguishes four categories of electronic surveillance and defines targets, U.S. persons, and contents. Document 11b poses questions and provides answers concerning the nature and location of the target, as well as the communications to be intercepted.

This summary provides a list of do and don't concerning the collection, processing, retention, and dissemination of intercepted communications involving a U.S. person.

This study, written a decade after the OTA study on electronic surveillance and civil liberties ( Document 7) focuses on electronic surveillance for law-enforcement, rather than foreign intelligence, purposes. Its relevance lies in its treatment of how the changing technology of communications in the digital age (circa 1995)-including fiber optics and the use of computers for directing and processing calls-influences law enforcement agencies' ability to conduct electronic surveillance.

Source: Freedom of Information Act Request

These guidelines, approved by Attorney General Janet Reno on July 1, 1997, pertain to the acquisition, retention, use, and dissemination of non-publicly available information concerning non-consenting U.S. persons collected in the course of electronic surveillance approved by the Foreign Intelligence Surveillance Court or authorized by the Attorney General under the provisions of the FISA.

Domestic communications are defined in this memo as any communication with both parties in the United States except when both parties are foreign powers and/or officers or employees of foreign powers (also referred to as "agents of a foreign power"). As the memo's title indicates, it focuses on various aspects of the handling of domestic communications required by the Foreign Intelligence Surveillance Act.

This article represents the recollections of staff member of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities (better known as the Church Committee), which investigated the SHAMROCK program as part of its broader 1975 inquiry into the activities of the U.S. Intelligence Community.

Source: http://www.fas.org/irp/nsa/standards.html

The Fiscal Year 2000 Intelligence Authorization Act required that the National Security Agency transmit a report summarizing the agency's understanding of the legal standards that authorized and constrained the electronic surveillance activities of the Intelligence Community. Topics covered include legal standards for (1) intercepts when the result may involve the acquisition of information from communications to or from a U.S. person; (2) for intentional targeting of communications to or from U.S. persons; (3) for receipt from non-U.S. sources of information pertaining to communication to or from United States persons; and (4) for the dissemination of information acquired through the interception of the communications to or from United States persons.

This PowerPoint presentation, before the House Permanent Select Committee on Intelligence, was a response by NSA Director Hayden to the reports in the American and European press over the ECHELON program. Among the topics covered in the presentation are press claims, protections for U.S. persons, the FISA process, the aftermath of unintentional acquisition of information on U.S. persons, the restrictions on NSA activity imposed by the Constitution, federal laws, executive orders, regulations, and the oversight of compliance.

Source: Document 21: Rules of the Foreign Intelligence Surveillance Court, November 29, 2000. Unclassified
http://www.fas.org

This document specifies, inter alia, the duties of the presiding judge, the powers of individual judges, rules concerning submission of applications, procedure on denial of applications, when the court meets, and its rules of decision.

Source: Document 22a: Letter, Representative Nancy Pelosi to Lt. Gen. Michael V. Hayden, Director, National Security Agency, October 11, 2001. Top Secret
Document 22b: Letter, Lt. Gen. Michael V. Hayden, Director, National Security Agency to Representative Nancy Pelosi, October 18, 2001. Secret
http://www.house.gov/pelosi/press/releases/Jan06/declassified.html

These two documents are an exchange of letters from October 2001, written by then-ranking member on the House Permanent Select Committee on Intelligence (HPSCI) Nancy Pelosi to National Security Agency Director Michael V. Hayden. In her letter, Pelosi expresses concerns regarding the electronic surveillance activities about which Hayden had testified in his October 1 appearance before the HPSCI. In his response, Hayden notes that his briefing was an attempt to "emphasize that I used my authorities to adjust NSA's collection and reporting."

In August 2002, the Department of Justice appealed the Foreign Intelligence Surveillance Court modification of an application for a FISA warrant, arguing that the act did not restrict the government's intention to use foreign intelligence information in criminal prosecutions. It further argued that even had the law imposed such restrictions they were revoked by the provisions of the PATRIOT Act.

This memo provides a primer for FBI personnel on applying for a FISA warrant. It discusses the FISA Court, probable cause, the theory of the case, the importance of the target of the proposed surveillance being an agent of a foreign power, and certification.

This document conveys the decision of the FISA review court, which granted the Department of Justice's appeal ( Document 23). In its conclusion the review court refers to "the President's inherent constitutional authority to conduct warrantless foreign intelligence surveillance."

Source: Document 26: Letter, John Ashcroft, Attorney General to L. Ralph Mecham, Director, Administrative Office of the United States Courts, April 29, 2003. Unclassified
http://www.epic.org

This letter from Attorney General Ashcroft constitutes the Department of Justice's annual report on FISA applications. Ashcroft notes that with the FISA review court's reversal of the FISC's two modifications of FISA warrant applications ( Document 12) all 1228 warrant applications for 2002 were granted.

Source: Document 27: Letter, Senator Jay D. Rockefeller to Vice President Richard Cheney, July 17, 2003. Unclassified
http://www.epic.org

Senator Rockefeller's reservations about NSA's warrantless eavesdropping program were expressed in this letter to Vice President Cheney, without mention of any of the specifics. It was handwritten because none of the Senator's aides were cleared to receive information about the program.

The Intelligence Reform and Terrorism Prevention Act of 2004 amended the Foreign Intelligence Surveillance Act's definition of an "agent of a foreign power" to include a non-U.S. person who engages in international terrorism or activities in preparation for international terrorism. This study analyzes whether and how the modified definition impacts the procedures for seeking a FISA warrant, contents of FISA applications, and the basis for court decisions granting a warrant.

In the aftermath of the September 11 attacks, Congress considered or passed a number of bills, the most prominent being the PATRIOT Act, which affected or proposed changes to FISA provisions. This analysis examines two categories of bills-intelligence reform or reorganization proposals with FISA provisions and other FISA-related bills-and the impact of their passage on the Act.

This study reviews both the statutory framework of the act as well as examining the Foreign Intelligence Surveillance Court decision that resulted in the government's August 2002 appeal, the appeal ( Document 23), and the decision of the FISC Court of Review ( Document 25).

In the attachment to his letter, the assistant Attorney General provides answers to a number of questions posed by Senator Specter in an April 2005 hearing before the Senate Judiciary Committee. The questions concern the time required to obtain a surveillance order under FISA, the factors related to the time required, and whether the "Lone Wolf" provision has been employed ( Document 17).

This address by President Bush occurred only a day after The New York Times revealed that he had authorized NSA to conduct warrantless electronic surveillance and represents the first of a number of administration defenses of the program. After discussing the status of the effort to renew the PATRIOT act, he turns to the objectives, propriety, and review process connected with the eavesdropping effort.

Source: Source: http://www.whitehouse.gov
Document 33b: Office of the Director of National Intelligence,Press Briefing by Attorney General Albert Gonzales and General Michael V. Hayden, Principal Deputy Director of National Intelligence, December 19, 2005. Unclassified
http://www.dni.gov

Two days after his radio address, the president held a press conference in which he discussed the warantless electronic surveillance program in more detail. That same day, the Attorney General and the principal deputy director of national intelligence held a press briefing at the White House devoted solely to the eavesdropping activity. In a brief statement before he and Hayden took questions, Gonzales argued that the Congressional use-of-force resolution passed after September 11 authorized the president to conduct surveillance and further that "the President has the inherent authority under the Constitution, as Commander-in-Chief, to engage in this kind of activity."

Source: Document 34: Letter, William E. Moschella to Senator Pat Roberts, Senator John D. Rockefeller IV, Rep. Peter Hoekstra, and Rep. Jane Harman, December 22, 2005. Unclassified
http://www.epic.org

This letter from the Assistant Attorney General to the chair and vice chair of the Senate Select Committee on Intelligence and the chair and ranking minority member of the House Permanent Select Committee on Intelligence is the first written, unclassified, legal opinion provided by the administration in defense of the post-9/11 warrantless electronic surveillance program. It refers to Article II of the U.S. Constitution, the post-9/11 Congressional resolution authorizing the use of force, and the November 18, 2002 decision by the Foreign Intelligence Surveillance Court of Review ( Document 16)

In response to concerns and charges by four Democratic members of Congress, this White House release contains sections devoted to "setting the record straight" in four areas: on separate NSA activities, on the terrorist ties of intercepted communications, on the scope of the program, and on the use of the FISA court.

This report challenges claims made by the president and other administration officials concerning the legality of the program permitting warrantless electronic surveillance that was approved by President Bush in October 2001. It disputes the assertion of presidential authority to bypass the FISA court. It also challenges the assertion that the Congressional resolution approved after the September 11 attacks represented an explicit or implicit authorization of the warrantless eavesdropping program.

Source: http://www.aclu.org

This complaint filed by the ACLU along with other organizations and individuals "challenges the constitutionality of a secret government program to intercept vast quantities of the international telephone and Internet communications of innocent Americans without court approval. The plaintiffs according to the complaint frequently communicate by telephone and e-mail with people in the Middle East and South Asia and "have a well-founded belief that their communications are being intercepted."

This study claims that the Bush administration may have violated a provision of the National Security Act by restricting its briefings about warrantless domestic eavesdropping to Congressional leaders. Rather, it is the analyst's conclusion that the law requires all members of the House and Senate intelligence oversight committees to be "fully and currently informed."

In response to continuing controversy the Justice Department released this extensive 42-page brief. After discussing the background of the eavesdropping program, NSA's activities, and the threat posed by Al-Qaeda, the brief addresses a number of issues concerning the legality of the program-whether the president has inherent constitutional authority to order warrantless foreign intelligence surveillance, whether the post-9/11 resolution passed by Congress (the Authorization to Use Military Force (AUMF)) authorized the President to bypass the FISA, and whether NSA's activities are consistent with the Foreign Intelligence Surveillance Act and the Fourth Amendment.

Hayden served as director of the National Security Agency from March 1999 until his appointment as principal deputy director of national intelligence in 2005. In his talk he sought to provide reassurance that NSA was focused on foreign intelligence, that it was not conducting "domestic spying" but was targeting individuals believed to be associated with al-Qaeda, that it was "not about" intercepting communications between individuals in the United States, and that it did not involve processing masses of data with keyword search. He also sought to explain why it was necessary for the administration to bypass the FISA court.

In this speech at Georgetown University Law School, the Attorney General cited the actions of past presidents in addition to citing some of the previous arguments in support of the administration's employment of NSA to conduct warantless electronic surveillance. He mentions George Washington's use of secret intelligence obtained from the interception of mail between the British and Americans, President Woodrow Wilson's order to intercept of all cable communications between the United States and Europe, and President Franklin D. Roosevelt's authorization to intercept all communications into and out of the United States.

This is a transcript of the president's remarks upon his visit to NSA. The remarks include a brief explanation of why he considered the NSA warrantless electronic surveillance program to be necessary, a reference to the actions of previous presidents, and his promise to continue to reauthorize the program as "long as our country faces a continuing threat from al Qaeda and related groups."

Notes

1. James Risen and Eric Lichtblau, "Bush Lets U.S. Spy on Callers Without Courts," New York Times, December 16, 2005, pp. A1, A22.

2. Eric Lichtblau and James Risen, "Eavesdropping Effort Began Soon After Sept. 11 Attacks," New York Times, December 18, 2005, p. 31; Erich Lichtblau and Scott Shane, "Agency FirstActed on Its Own To Broaden Spying, Files Show," New York Times, January 4, 2006, pp. A1,A13; Eric Lichtblau and James Risen, "Spy Agency Mined Vast Data Trove, Officials Report," New York Times, December 24, 2005, pp. A1, A12; Walter Pincus, "NSA Gave Other U.S. Agencies Information From Surveillance," January 1, 2006, www.washingtonpost.com; James Risen and Eric Lichtblau, "Spying Program Snared U.S. Calls," New York Times, December 21, 2005, pp. A1, A23.

3. "This Call May Be Monitored," New York Times, December 18, 2005, Sec. 4, p.11; "Thank You for Wiretapping," Wall Street Journal, December 20, 2005, p. A14; Richard Lacayo, "Has Bush Gone Too Far?," January 1, 2006, www.time.com; Carol D. Leoning, "Surveillance Court is Seeking Answers," January 5, 2006, www.washingtonpost.com; Scott Shane, "Key Democrat Says Spying Violated Law," New York Times, January 5, 2006, p. A16; Scott Shane, "Republican Senator Defends Briefings on Domestic Spying," New York Times, January 6, 2006, p. A15; Lowell Bergman, Eric Lichtblau, Scott Shane, and Don Van Natta Jr., "Spy Agency Data After Sept. 11 Led F.B.I. to Dead Ends," New York Times, January 17, 2006, pp. A1, A12; Dan Eggen, "Probe Set in NSA Bugging," January 11, 2006, www.washingtonpost,com; Eric Lichtblau, "Two Group Plan Lawsuits Over Federal Eavesdropping," New York Times, January 17, 2006, p. A12.

4. A U.S. person is defined as:

a citizen of the United States, an alien lawfully admitted for permanent residence ..., an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an associated which is a foreign power. Foreign Intelligence Surveillance Act, 50 U.S.C. §1801(i).

The Fourth Amendment provides:

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 place to be searched, and the persons or things to be seized. U.S. Constitution amend. IV.

5. See Jeffrey T. Richelson, "Desperately Seeking Signals," Bulletin of the Atomic Scientists, March/April 2000, pp. 47-51.

6. James Bamford, The Puzzle Palace: A Report on NSA, America's Most Secret Agency (Boston: Houghton-Mifflin, 1982), pp. 236-254; Bob Woodward, "Messages of Activists Intercepted," Washington Post, October 13, 1975, pp. A1, A14.

7. See National Security Archive Electronic Briefing Book #24, Jeffrey Richelson, editor, The National Security Agency Declassified, March 11, 2005, for USSID 18 and other USSID 18-related documents.

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Electronic Surveillance: From the Cold War to Al-Qaeda

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In the news "For Some, Spying Controversy Recalls a Past Drama" By Scott Shane New York Times February 6, 2006 "Spirited wiretap debate of '76" By Tom Brune Newsday February 5, 2006 By Margaret Ebrahim"Papers: Ford White House Weighed Wiretaps" Associated Press (via WashingtonPost.com) February 4, 2006 Related posting The National Security Agency Declassified Note: The following documents are in PDF format.

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En rapport fra 1976 om overvågning i USA. Efter WATERGATE

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Refleksioner over overvågning i 1975

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Sen. Frank Church Warns of How Easily Government Can Abuse Expanding Surveillance Capabilities

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Artikel med video - om amerikansk propaganda om frihed kontra sovjetiske diktatur

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Artikel med video - om amerikansk propaganda om frihed kontra sovjetiske diktatur

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Artikel om overvågning og privat livets fred under den kolde krig

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In Griswold v. Connecticut, the United States Supreme Court famously struck down a nineteenth-century Connecticut state law banning the use of contraceptive devices, including by married couples. Though legally innovative, the June 1965 ruling was remarkably traditional, carefully affirming the fundamental importance of marriage and the family to American society. Justice William O. Douglas's majority opinion articulated a new "right to marital privacy [emphasis added]," which he found in the "penumbras" of the , straddling the First, Third, Fourth, Fifth, and Ninth Amendments. To be sure, Douglas and the six justices who joined his opinion relied upon ample precedent that had long assumed an ill-defined right to privacy, but Griswold represented "the first time the Court gave privacy a constitutional guarantee." Why did the Court create and explicate this fundamental right then, and why in a case involving contraception, sex, and marriage, rather than the many contemporaneous cases involving government surveillance or communist subversion—especially in the midst of the Cold War?

In fact, it is the political culture of the Cold War, and the prevailing anticommunist consensus that located the nuclear family and its private home at the heart of American freedom, which best accounts for Griswold and the constitutional right to privacy. In this tumultuous period, political leaders and ordinary Americans came to define and champion their democracy in contradistinction to the USSR and its intrusions into the lives of Soviet citizens. Paradoxically, the American family home's essential privacy and security endowed it with a similarly crucial public function: the "United States would win the cold war," this political logic dictated, "because it produced the most satisfying home life." In this era of global ideological conflict, the right to privacy was expressed in "the sacred precincts of marital bedrooms"—for that was where, statesmen, civil liberties advocates, and judges worried, totalitarian impulses threatened to take root and needed to be overcome.

In the mid-twentieth century, as the United States battled the Nazis and, immediately thereafter, the Soviets, Americans adopted a deeply felt "fear of the state." In particular, this antistatism—advanced most fervently by a resurgent conservative movement but also shared by many postwar liberals—coalesced around "familial privacy." As Cold War tensions escalated, American citizens came to believe that communism posed an existential threat to their way of life and, above all, they "feared what they perceived would be the inevitable destruction of family life as communist leaders sent fathers to factories or the army, mothers to work outside the home, children to indoctrination schools, and babies to communal care centers." As these attitudes and anxieties took hold in American political, social, and cultural life, it was "the image of an idealized family," jeopardized and imperiled, that resonated most strongly.
Warner Bros. and the Department of Defense jointly produced this educational short film about the dangers that communism presented to the American family. In 1962, it was broadcast on national television and distributed for use in American schools. The film was also known as "Freedom and You."
It is all the more striking, then, that, in the 1950s and '60s, the federal government increasingly intruded upon familial privacy, even as it simultaneously championed the image of the inviolable home. These contradictory aims both found expression in the Federal Civil Defense Administration (FCDA), established by President Harry S. Truman in 1951 to help families prepare for impending nuclear attack. Civil defense programs, from school-time duck and cover drills to do-it-yourself home nuclear fallout shelters, "asked ordinary citizens to become partners in the nation's defense," providing the family with a new civic responsibility and role in the postwar national security state. Ironically, even as men, women, and children mobilized to protect their homes from outside forces by incorporating civil defense into their daily lives, they necessarily participated in and furthered "the militarization of...family life."
This educational film, starring "Bert the Turtle," was funded by the Federal Civil Defense Administration. Beginning in 1952, it taught hundreds of thousands of school children nationwide to "duck and cover" in the event of a nuclear attack.
Even as they expanded the FCDA, government officials worried that "federally financed plans...too closely resembled Soviet-style 'big government,'" so, instead, American civil defense was privatized through the family and "mediated through the language and institutions of postwar domesticity," simultaneously reinforcing that traditional domesticity and provoking an unprecedented invasion of family life. If, during World War II, soldiers had been motivated to "figh[t] for the American family," which they had seen "as the object-prize of military struggle," in the 1950s and '60s, the family was transformed into "the engine and soldier of the battle itself." During the Cold War, the nuclear family was not only the site of preparation for atomic warfare, but was also deployed as a rhetorical and substantive "defense against political subversion, gender and sexual deviance, and myriad social problems."
More "Civil Defense" Multimedia Resources

"Civil Defense Photographs, 1951-1961," Records of the Office of Civil and Defense Mobilization, 1947-1962, National Archives.

"Civil Defense Scenes," ca. 1950, Motion Picture Films from the Army Library Copy Collection, 1964-1980, Records of the Office of the Chief Signal Officer, 1860-1985, National Archives.

"Vintage Atomic and Nuclear Films" YouTube Playlist.

Historian Elaine Tyler May's Homeward Bound: American Families in the Cold War Era (1988) perhaps best explains this social and political reality. "Containment," May argues, was not only a foreign policy strategy designed to combat the Soviet Union and quell the international spread of communism, but also an "overarching principle" that guided ordinary Americans' "personal and political lives." Following the trauma and upheaval of the Great Depression and World War II, and facing the omnipresent threat of nuclear war, middle-class men and women yearned for "secure jobs, secure homes, and secure marriages in a secure country." They invested the suburban home and the nuclear family with new normative significance, linking "domestic tranquility" with the promise of a safe, prosperous future. At the same time, they feared the family was "particularly vulnerable," endangered by foreign and domestic communists and also by the very abundance and freedoms that typified modern American life: "secularism, materialism, bureaucratic collectivism, and consumerism."Thus, the home prescribed and produced by domestic containment was a "self-contained home" that could "protect them against themselves."

In this way, containment "fueled conformity to the suburban family ideal." According to May, this was best exemplified by the so-called "Kitchen Debate" held in 1959 between Vice President Richard Nixon and Soviet Premier Nikita Khrushchev. As the two leaders toured the American National Exhibition in Moscow, inspecting model homes stocked with washing machines and state-of-the-art refrigerators, "Nixon insisted that American superiority in the cold war rested not on weapons, but on the secure, abundant family life of modern suburban homes." To Nixon and other Cold Warriors, the suburban home attested to the thriving American Dream, and rendered the "worrisome developments" of the mid-twentieth century, "like sexual liberalism [and] women's emancipation," innocuous and palatable. "Contained" within the family home, "[s]ex would enhance marriage, emancipated women would professionalize homemaking, and affluence would put an end to material deprivation." These broader trends would not compromise but strengthen the nuclear family and would improve Americans' quality of life—and enable American victory in a Cold War understood to be a global contest between two opposing lifestyles.

Americans came to understand birth control—the matter at hand in Griswold v. Connecticut —through this same geopolitical lens. On the one hand, the mid-twentieth-century witnessed a massive "baby boom," accompanied by "an intense and widespread endorsement of pronatalism—the belief in the positive value of having several children." For postwar parents, multiple children provided "a means of replenishing a world depleted by war deaths" and of "demonstrat[ing]...loyalty to national goals" and "express[ing] civic values." On the other hand, the birth control movement—which, by definition, aimed to limit family size—"gained momentum" in the postwar decades. The Planned Parenthood Foundation of America (PPFA), the most prominent birth control organization at the time (and now), emphasized the importance of "mutual sexual enjoyment"—without fear of an unintended pregnancy—to happy, durable marriages and to American society.

In the early decades of the Cold War, as voters came to view birth control more favorably—and even as an "ethical imperative"—many states began to legalize contraceptive devices and drugs, including diaphragms, intra-uterine coils, and "the pill," first approved by the Food and Drug Administration in 1960. Connecticut remained a rare holdout. It was in this context that the Planned Parenthood League of Connecticut and its new executive director, Estelle Griswold, began to develop a novel civil liberties approach to birth control that emphasized marital and familial privacy. The strategy resonated strongly with the national PPFA, the American Civil Liberties Union, and an American public and judiciary preoccupied with the Cold War and anti-totalitarianism.
In this video produced by Planned Parenthood, Sue Hessel and Mary Dodge remember their mother, Bea Hessel, who worked with Estelle Griswold at the Planned Parenthood League of Connecticut.
The legal strategy's first national test arrived in 1961, as the Supreme Court adjudicated Poe v. Ullman. The appellants attempted to challenge the same Connecticut law that would be overturned four years later, but—for now—the Court held that they did not have sufficient standing to sue. Nonetheless, the case was instructive, as amicus curiae briefs and the attorneys themselves began to outline arguments that decried looming totalitarian threats and highlighted the centrality of marriage and the family to American culture and society. The appellant's brief, for example, asserted that "[w]hen the long arm of the law reaches into the bedroom and regulates the most sacred relations between a man and his wife, it is going too far." Restricting contraception usage in this way, and thus prescribing abstinence, jeopardized "satisfactory marital adjustment" and "stable family life," endangering "the social order" and "the mental health of the nation."

Though the plurality declined to weigh in on the merits of the case, Justice Douglas's dissenting opinion registered his opposition to the Connecticut law. Notably, he argued not only that familial privacy "is implicit in a free society," but also that the invasion of such privacy is a distinctive, defining feature of a totalitarian state. Douglas forcefully asserted that if "search warrants [were] issued and officers appeared in bedrooms to find out what went on" and the state were to "ente[r] the innermost sanctum of the home," it would challenge America's essential democratic character.

Griswold's attorneys also made clear that they were not interested in defending sexual intimacy in general, but only specifically marital relations. Quoting Justice John Marshall Harlan's dissent in Poe, their brief declared, "'It is one thing when the State exerts its power either to forbid extramarital sexuality altogether, or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy.'" This distinction found expression in Douglas's opinion for the 7-2 majority, which concluded:

For the Supreme Court, it was marriage in particular that was sacred and required protection in order to safeguard American liberty and the nation's particular "way of life."

Though the constitutional right to privacy has since expanded to encompass abortion and same-sex marriage, the initial decision in Griswold was rather conservative in nature—in fact, the essential differences between a civil liberties approach to privacy and competing legal strategies premised on equality grounds or the fundamental right to dignity may help us comprehend some of the ongoing controversy surrounding these contemporary legal issues. This disjuncture comes into greater focus when we understand Griswold as a product of and a response to the Cold War and the particular ways in which anticommunism sanctified marriage and the nuclear family.

ABOUT THE AUTHOR

Serena Covkin is a Ph.D. student at the University of Chicago, studying nineteenth- and twentieth-century United States history. She graduated summa cum laude from the University of Pennsylvania with a B.A. in History. In 2013, her U.S. History Scene article on Civil War photography was cited in an amicus curiae brief submitted to the United States Supreme Court.

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Communists, Contraception, and the Constitutional Right to Privacy in the Cold War - US History Scene

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In Griswold v. Connecticut , the United States Supreme Court famously struck down a nineteenth-century Connecticut state law banning the use of contraceptive devices, including by married couples. Though legally innovative, the June 1965 ruling was remarkably traditional, carefully affirming the fundamental importance of marriage and the family to American society.

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Ikke kilde men udmærket til overblik og videre research

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The practice of mass surveillance in the United States dates back to wartime monitoring and censorship of international communications from, to, or which passed through the United States. After the First and Second World Wars, mass surveillance continued throughout the Cold War period, via programs such as the Black Chamber and Project SHAMROCK. The formation and growth of federal law-enforcement and intelligence agencies such as the FBI, CIA, and NSA institutionalized surveillance used to also silence political dissent, as evidenced by COINTELPRO projects which targeted various organizations and individuals. During the Civil Rights Movement era, many individuals put under surveillance orders were first labelled as integrationists, then deemed subversive, and sometimes suspected to be supportive of the communist model of the United States' rival at the time, the Soviet Union. Other targeted individuals and groups included Native American activists, African American and Chicano liberation movement activists, and anti-war protesters.

The formation of the international UKUSA surveillance agreement of 1946 evolved into the ECHELON collaboration by 1955 of five English-speaking nations, also known as the Five Eyes, and focused on interception of electronic communications, with substantial increases in domestic surveillance capabilities.

Following the September 11th attacks of 2001, domestic and international mass surveillance capabilities grew immensely. Contemporary mass surveillance relies upon annual presidential executive orders declaring a continued State of National Emergency, first signed by George W. Bush on September 14, 2001 and then continued on an annual basis by President Barack Obama. Mass surveillance is also based on several subsequent national security Acts including the USA PATRIOT Act and FISA Amendment Act's PRISM surveillance program. Critics and political dissenters currently describe the effects of these acts, orders, and resulting database network of fusion centers as forming a veritable American police state that simply institutionalized the illegal COINTELPRO tactics used to assassinate dissenters and leaders from the 1950s onwards.

Additional surveillance agencies, such as the DHS and the position of Director of National Intelligence, have exponentially escalated mass surveillance since 2001. A series of media reports in 2013 revealed more recent programs and techniques employed by the US intelligence community. Advances in computer and information technology allow the creation of huge national databases that facilitate mass surveillance in the United States by DHS managed fusion centers, the CIA's Terrorist Threat Integration Center (TTIC) program, and the FBI's Terrorist Screening Database (TSDB).

After World War I, the US Army and State Department established the Black Chamber, also known as the Cipher Bureau, which began operations in 1919. The Black Chamber was headed by Herbert O. Yardley, who had been a leader in the Army's Military Intelligence program. Regarded as a precursor to the National Security Agency, it conducted peacetime decryption of material including diplomatic communications until 1929.

In the advent of World War II, the Office of Censorship was established. The wartime agency monitored "communications by mail, cable, radio, or other means of transmission passing between the United States and any foreign country". This included the 350,000 overseas cables and telegrams and 25,000 international telephone calls made each week. "Every letter that crossed international or U.S. territorial borders from December 1941 to August 1945 was subject to being opened and scoured for details."

With the end of World War II, Project SHAMROCK was established in 1945. The organization was created to accumulate telegraphic data entering and exiting from the United States. Major communication companies such as Western Union, RCA Global and ITT World Communications actively aided the project, allowing American intelligence officials to gain access to international message traffic. Under the project, and many subsequent programs, no precedent had been established for judicial authorization, and no warrants were issued for surveillance activities. The project was terminated in 1975.

President Harry S. Truman established the National Security Agency ( NSA) in 1952 for the purposes of collecting, processing, and monitoring intelligence data. The existence of NSA was not known to people as the memorandum by President Truman was classified.

When the Citizens' Commission to Investigate the FBI published stolen FBI documents revealing abuse of intelligence programs in 1971, Senator Frank Church began an investigation into the programs that become known as the Church Committee. The committee sought to investigate intelligence abuses throughout the 1970s. Following a report provided by the committee outlining egregious abuse, in 1976 Congress established the Senate Select Committee on Intelligence. It would later be joined by the Foreign Intelligence Surveillance Court in 1978. The institutions worked to limit the power of the agencies, ensuring that surveillance activities remained within the rule of law.

Following the attacks of September 11, 2001, Congress passed The Patriot Act to strengthen security and intelligence efforts. The act granted the President broad powers on the war against terror, including the power to bypass the FISA Court for surveillance orders in cases of national security. Additionally, mass surveillance activities were conducted alongside various other surveillance programs under the head of President's Surveillance Program. Under pressure from the public, the warrantless wiretapping program was allegedly ended in January 2007.

Many details about the surveillance activities conducted in the United States were revealed in the disclosure by Edward Snowden in June 2013. Regarded as one of the biggest media leaks in the United States, it presented extensive details about the surveillance programs of the NSA, that involved interception of Internet data and telephonic calls from over a billion users, across various countries.

1947: The National Security Act was signed by President Truman, establishing a National Security Council.

1949: The Armed Forces Security Agency was established to coordinate signal operations between military branches.

1952: The National Security Agency (NSA) was officially established by President Truman by way of a National Security Council Intelligence Directive 9, dated Oct. 24, while the NSA officially came into existence days later on Nov. 4. According to The New York Times, the NSA was created in "absolute secrecy" by President Truman, whose surveillance-minded administration ordered, only six weeks after President Truman took office, wiretaps on the telephones of Thomas Gardiner Corcoran, a close advisor of Franklin D. Roosevelt. The recorded conversations are currently kept at the Harry S. Truman Presidential Library and Museum, along with other documents considered sensitive ( ≈233,600 pages).

Purported to be chasing 'communists' and other alleged subversives, the FBI used public and private pressure to destroy the lives of those it targeted during McCarthyism, including those lives of the Hollywood 10 with the Hollywood blacklist. The FBI's surveillance and investigation roles expanded in the 1950s while using the collected information to facilitate political assassinations, including the murders of Fred Hampton and Mark Clark in 1969. FBI is also directly connected to the bombings, assassinations, and deaths of other people including Malcolm X in 1963, Viola Liuzzo in 1965, Dr. Martin Luther King Jr. in 1968, Anna Mae Pictou Aquash in 1976, and Judi Bari in 1990.

As the extent of the FBI's domestic surveillance continued to grow, many celebrities were also secretly investigated by the bureau, including:

First Lady Eleanor Roosevelt - A vocal critic of Hoover who likened the FBI to an 'American Gestapo' for its Index lists. Roosevelt also spoke out against anti-Japanese prejudice during the second world war, and was later a delegate to the United Nations and instrumental in creating the Universal Declaration of Human Rights. The 3,000-page FBI dossier on Eleanor Roosevelt reveals Hoover's close monitoring of her activities and writings, and contains retaliatory charges against her for suspected Communist activities.

Frank Sinatra - His 1,300 page FBI dossier, dating from 1943, contains allegations about Sinatra's possible ties to the American Communist Party. The FBI spent several decades tracking Sinatra and his associates.

Marilyn Monroe - Her FBI dossier begins in 1955 and continues up until the months before her death. It focuses mostly on her travels and associations, searching for signs of leftist views and possible ties to communism. Her ex-husband, Arthur Miller, was also monitored.[citation needed ] Monroe's FBI dossier is "heavily censored", but a "reprocessed" version has been released by the FBI to the public.

John Lennon - In 1971, shortly after Lennon arrived in the United States on a visa to meet up with anti-war activists, the FBI placed Lennon under surveillance, and the U.S. government tried to deport him from the country. At that time, opposition to the Vietnam War had reached a peak and Lennon often showed up at political rallies to sing his anti-war anthem "Give Peace a Chance". The U.S. government argued that Lennon's 300 page FBI dossier was particularly sensitive because its release may "lead to foreign diplomatic, economic and military retaliation against the United States", and therefore only approved a "heavily censored" version.

The Beatles, of which John Lennon was a member, had a separate FBI dossier.

1967-73: The now-defunct Project MINARET was created to spy on U.S. citizens. At the request of the U.S. Army, those who protested against the Vietnam War were put on the NSA's "watch list".

1975: The Church Committee of the United States Senate was set up to investigate widespread intelligence abuses by the NSA, CIA and FBI. Domestic surveillance, authorized by the highest executive branch of the federal government, spanned from the FDR Administration to the Presidency of Richard Nixon. The following examples were reported by the Church Committee:

President Roosevelt asked the FBI to put in its files the names of citizens sending telegrams to the White House opposing his "national defense" policy and supporting Col. Charles Lindbergh.

President Truman received inside information on a former Roosevelt aide's efforts to influence his appointments, labor union negotiating plans, and the publishing plans of journalists.

President Eisenhower received reports on purely political and social contacts with foreign officials by Bernard Baruch, Eleanor Roosevelt, and Supreme Court Justice William O. Douglas.

The Kennedy administration ordered the FBI to wiretap a congressional staff member, three executive officials, a lobbyist, and a Washington law firm. US Attorney General Robert F. Kennedy received data from an FBI wire tap on Martin Luther King Jr. and an electronic listening device targeting a congressman, both of which yielded information of a political nature.

President Johnson asked the FBI to conduct "name checks" on his critics and members of the staff of his 1964 opponent, Senator Barry Goldwater. He also requested purely political intelligence on his critics in the Senate, and received extensive intelligence reports on political activity at the 1964 Democratic Convention from FBI electronic surveillance.

President Nixon authorized a program of wiretaps which produced for the White House purely political or personal information unrelated to national security, including information about a Supreme Court justice.

The Final Report (Book II) of the Church Committee revealed the following statistics:

Over 26,000 individuals were at one point catalogued on an FBI list of persons to be rounded up in the event of a "national emergency".

Over 500,000 domestic intelligence files were kept at the FBI headquarters, of which 65,000 were opened in 1972 alone.

At least 130,000 first class letters were opened and photographed by the FBI from 1940 to 1966.

A quarter of a million first class letters were opened and photographed by the CIA from 1953 to 1973.

Millions of private telegrams sent from, or to, through the United States were obtained by the National Security Agency (NSA), under a secret arrangement with U.S. telegraph companies, from 1947 to 1975.

Over 100,000 Americans have been indexed in U.S. Army intelligence files.

About 300,000 individuals were indexed in a CIA computer system during the course of Operation CHAOS.

Intelligence files on more than 11,000 individuals and groups were created by the Internal Revenue Service (IRS), with tax investigations "done on the basis of political rather than tax criteria".

In response to the committee's findings, the United States Congress passed the Foreign Intelligence Surveillance Act in 1978, which led to the establishment of the United States Foreign Intelligence Surveillance Court, which was authorized to issue surveillance warrants.

Several decades later in 2013, the presiding judge of the FISA Court, Reggie Walton, told The Washington Post that the court only has a limited ability to supervise the government's surveillance, and is therefore "forced" to rely upon the accuracy of the information that is provided by federal agents.

On August 17, 1975 Senator Frank Church stated on NBC's "Meet the Press" without mentioning the name of the NSA about this agency:

In the need to develop a capacity to know what potential enemies are doing, the United States government has perfected a technological capability that enables us to monitor the messages that go through the air. Now, that is necessary and important to the United States as we look abroad at enemies or potential enemies. We must know, at the same time, that capability at any time could be turned around on the American people, and no American would have any privacy left such is the capability to monitor everything - telephone conversations, telegrams, it doesn't matter. There would be no place to hide.

If this government ever became a tyrant, if a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back because the most careful effort to combine together in resistance to the government, no matter how privately it was done, is within the reach of the government to know. Such is the capability of this technology.

I don't want to see this country ever go across the bridge. I know the capacity that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision so that we never cross over that abyss. That is the abyss from which there is no return.

In 1988 an article titled "Somebody's listening" by Duncan Campbell in the New Statesman described the signals-intelligence gathering activities of a program code-named " ECHELON". The program was engaged by English-speaking World War II Allied countries - Australia, Canada, New Zealand, the United Kingdom and the United States (collectively known as AUSCANNZUKUS). It was created by the five countries to monitor the military and diplomatic communications of the Soviet Union and of its Eastern Bloc allies during the Cold War in the early 1960s.

By the 1990s the ECHELON system could intercept satellite transmissions, public switched telephone network (PSTN) communications (including most Internet traffic), and transmissions carried by microwave. The New Zealand journalist Nicky Hager provided a detailed description of ECHELON in his 1996 book Secret Power. While some member governments denied the existence of ECHELON, a report by a committee of the European Parliament in 2001 confirmed the program's use and warned Europeans about its reach and effects. The European Parliament stated in its report that the term "ECHELON" occurred in a number of contexts, but that the evidence presented indicated it was a signals-intelligence collection system capable of interception and content-inspection of telephone calls, fax, e-mail and other data-traffic globally.

James Bamford further described the capabilities of ECHELON in Body of Secrets (2002) about the National Security Agency. Intelligence monitoring of citizens, and their communications, in the area covered by the AUSCANNZUKUS security agreement have, over the years, caused considerable public concern.

We will come together to strengthen our intelligence capabilities to know the plans of terrorists before they act and to find them before they strike.

In the aftermath of the September 2001 attacks on the World Trade Center and the Pentagon, bulk domestic spying in the United States increased dramatically. The desire to prevent future attacks of this scale led to the passage of the Patriot Act. Later acts include the Protect America Act (which removes the warrant requirement for government surveillance of foreign targets) and the FISA Amendments Act (which relaxed some of the original FISA court requirements).

In 2005, a report about President Bush's President's Surveillance Program appeared in The New York Times. According to reporters James Risen and Eric Lichtblau, the actual publication of their report was delayed for a year because "The White House asked The New York Times not to publish this article".

Also in 2005, the existence of STELLARWIND was revealed by Thomas Tamm. In 2006, Mark Klein revealed the existence of Room 641A that he had wired back in 2003. In 2008, Babak Pasdar, a computer security expert, and CEO of Bat Blue publicly revealed the existence of the "Quantico circuit", that he and his team found in 2003. He described it as a back door to the federal government in the systems of an unnamed wireless provider; the company was later independently identified as Verizon.

The NSA's database of American's phone calls was made public in 2006 by journalist Leslie Cauley in an article titled, "NSA has massive database of Americans' phone calls." The article cites anonymous sources that described the program's reach on American citizens:

... it means that the government has detailed records of calls they made - across town or across the country - to family members, co-workers, business contacts and others. The three telecommunications companies are working under contract with the NSA, which launched the program in 2001 shortly after the Sept. 11 terrorist attacks.

The report failed to generate discussion of privacy rights in the media and was not referenced by Greenwald or The Washington Post in any of their subsequent reporting.

In 2009, The New York Times cited several anonymous intelligence officials alleging that "the N.S.A. made Americans targets in eavesdropping operations based on insufficient evidence tying them to terrorism" and "the N.S.A. tried to wiretap a member of Congress without a warrant".

On 15 March 2012, the American magazine published an article with the headline "The NSA Is Building the Country's Biggest Spy Center (Watch What You Say)", which was later mentioned by U.S. Rep. Hank Johnson during a congressional hearing. In response to Johnson's inquiry, NSA director Keith B. Alexander testified that these allegations made by magazine were untrue:

Under construction by contractors with top-secret clearances, the blandly named Utah Data Center is being built for the National Security Agency. A project of immense secrecy, it is the final piece in a complex puzzle assembled over the past decade. Its purpose: to intercept, decipher, analyze, and store vast swaths of the world's communications as they zap down from satellites and zip through the underground and undersea cables of international, foreign, and domestic networks. The heavily fortified $2 billion center should be up and running in September 2013. Flowing through its servers and routers and stored in near-bottomless databases will be all forms of communication, including the complete contents of private emails, cell phone calls, and Google searches, as well as all sorts of personal data trails-parking receipts, travel itineraries, bookstore purchases, and other digital "pocket litter." It is, in some measure, the realization of the " total information awareness" program created during the first term of the Bush administration-an effort that was killed by Congress in 2003 after it caused an outcry over its potential for invading Americans' privacy. But "this is more than just a data center," says one senior intelligence official who until recently was involved with the program. The mammoth Bluffdale center will have another important and far more secret role that until now has gone unrevealed. It is also critical, he says, for breaking codes. And code-breaking is crucial, because much of the data that the center will handle-financial information, stock transactions, business deals, foreign military and diplomatic secrets, legal documents, confidential personal communications-will be heavily encrypted ...

Representative Johnson: "The author of the magazine article, his name is James Bashford, [] he writes that NSA has software that "searches U.S. sources for target addresses, locations, countries and phone numbers as well as watchlisted names, keywords, and phrases in email. Any communication that arouses suspicion, especially those to or from the million or so people on the agency watchlists are automatically copied or recorded and then transmitted to the NSA." Is this true?"

General Alexander: "No, it's not. And that's from James Bashford? []"
Rep. Johnson: "Yes. Does the NSA routinely intercept American citizens' emails?"
Gen. Alexander: " No."
Rep. Johnson: "Does the NSA intercept Americans' cell phone conversations?"
Gen. Alexander: "No."
Rep. Johnson: "Google searches?"
Gen. Alexander: "No."
Rep. Johnson: "Text messages?"
Gen. Alexander: "No."
Rep. Johnson: "Amazon.com orders?"
Gen. Alexander: "No."
Rep. Johnson: "Bank records?"
Gen. Alexander: "No."

On 6 June 2013, Britain's The Guardian newspaper began publishing a series of revelations by an unnamed American whistleblower, revealed several days later to be former CIA and NSA-contracted systems analyst Edward Snowden. Snowden gave a cache of internal documents in support of his claims to two journalists: Glenn Greenwald and Laura Poitras, Greenwald later estimated that the cache contains 15,000 - 20,000 documents, some very large and very detailed, and some very small. This was one of the largest news leaks in the modern history of the United States. In over two months of publications, it became clear that the NSA operates a complex web of spying programs which allow it to intercept internet and telephone conversations from over a billion users from dozens of countries around the world. Specific revelations have been made about China, the European Union, Latin America, Iran and Pakistan, and Australia and New Zealand, however the published documentation reveals that many of the programs indiscriminately collect bulk information directly from central servers and internet backbones, which almost invariably carry and reroute information from distant countries.

Due to this central server and backbone monitoring, many of the programs overlap and interrelate among one another. These programs are often done with the assistance of US entities such as the United States Department of Justice and the FBI, are sanctioned by US laws such as the FISA Amendments Act, and the necessary court orders for them are signed by the secret Foreign Intelligence Surveillance Court. In addition to this, many of the NSA's programs are directly aided by national and foreign intelligence services, Britain's GCHQ and Australia's DSD, as well as by large private telecommunications and Internet corporations, such as Verizon, Telstra, Google and Facebook.

On 9 June 2013, Edward Snowden told The Guardian:

They (the NSA) can use the system to go back in time and scrutinize every decision you've ever made, every friend you've ever discussed something with, and attack you on that basis to sort of derive suspicion from an innocent life and paint anyone in the context of a wrongdoer.

The US government has aggressively sought to dismiss and challenge Fourth Amendment cases raised: Hepting v. AT&T, , Clapper v. Amnesty International, Al-Haramain Islamic Foundation v. Obama, and Center for Constitutional Rights v. Bush. The government has also granted retroactive immunity to ISPs and telecoms participating in domestic surveillance.

The US district court judge for the District of Columbia, Richard Leon, declared on December 16, 2013 that the mass collection of metadata of Americans' telephone records by the National Security Agency probably violates the Fourth Amendment prohibition of unreasonable searches and seizures.

Given the limited record before me at this point in the litigation - most notably, the utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative tactics - I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.

"Plaintiffs have a substantial likelihood of showing that their privacy interests outweigh the government's interest in collecting and analysing bulk telephony metadata and therefore the NSA's bulk collection program is indeed an unreasonable search under the fourth amendment," he wrote.

"The Fourth Amendment typically requires 'a neutral and detached authority be interposed between the police and the public,' and it is offended by 'general warrants' and laws that allow searches to be conducted 'indiscriminately and without regard to their connections with a crime under investigation,'" he wrote. He added:

I cannot imagine a more 'indiscriminate' and 'arbitrary invasion' than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely such a program infringes on 'that degree of privacy' that the founders enshrined in the Fourth Amendment. Indeed I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware 'the abridgement of freedom of the people by gradual and silent encroachments by those in power,' would be aghast.

Leon granted the request for a preliminary injunction that blocks the collection of phone data for two private plaintiffs (Larry Klayman, a conservative lawyer, and Charles Strange, father of a cryptologist killed in Afghanistan when his helicopter was shot down in 2011) and ordered the government to destroy any of their records that have been gathered. But the judge stayed action on his ruling pending a government appeal, recognizing in his 68-page opinion the "significant national security interests at stake in this case and the novelty of the constitutional issues."

On 20 May 2014, U.S. Representative for Michigan's 8th congressional district Republican congressman Mike Rogers introduced Intelligence Authorization Act for Fiscal Year 2015 with the goal of authorizing appropriations for fiscal years 2014 and 2015 for intelligence and intelligence-related activities of the United States Government, the Community Management Account, and the Central Intelligence Agency (CIA) Retirement and Disability System, and for other purposes.

Some of its measures cover the limitation on retention. A covered communication (meaning any nonpublic telephone or electronic communication acquired without the consent of a person who is a party to the communication, including communications in electronic storage) shall not be retained in excess of 5 years, unless: (i) the communication has been affirmatively determined, in whole or in part, to constitute foreign intelligence or counterintelligence or is necessary to understand or assess foreign intelligence or counterintelligence; (ii) the communication is reasonably believed to constitute evidence of a crime and is retained by a law enforcement agency; (iii) the communication is enciphered or reasonably believed to have a secret meaning; (iv) all parties to the communication are reasonably believed to be non-United States persons; (v) retention is necessary to protect against an imminent threat to human life, in which case both the nature of the threat and the information to be retained shall be reported to the congressional intelligence committees not later than 30 days after the date such retention is extended under this clause; (vi) retention is necessary for technical assurance or compliance purposes, including a court order or discovery obligation, in which case access to information retained for technical assurance or compliance purposes shall be reported to the congressional intelligence committees on an annual basis; (vii) retention for a period in excess of 5 years is approved by the head of the element of the intelligence community responsible for such retention, based on a determination that retention is necessary to protect the national security of the United States, in which case the head of such element shall provide to the congressional intelligence committees a written certification describing (I) the reasons extended retention is necessary to protect the national security of the United States; (II) the duration for which the head of the element is authorizing retention; (III) the particular information to be retained; and (IV) the measures the element of the intelligence community is taking to protect the privacy interests of United States persons or persons located inside the United States.

On 10 December 2014, Republican U.S. Representative for Michigan's 3rd congressional district member of Congress Justin Amash criticized the act on his Facebook as being "one of the most egregious sections of law I've encountered during my time as a representative" and "It grants the executive branch virtually unlimited access to the communications of every American".

On 11 December 2014, a petition was created on We the People section of the whitehouse.gov website petitioning the Obama administration to veto the law.

The USA Freedom Act was signed into law on June 2, 2015, the day after certain provisions of the Patriot Act had expired. It mandated an end to bulk collection of phone call metadata by the NSA within 180 days, but allowed continued mandatory retention of metadata by phone companies with access by the government with case-by-case approval from the Foreign Intelligence Surveillance Court.

Under the Mail Isolation Control and Tracking program, the U.S. Postal Service photographs the exterior of every piece of paper mail that is processed in the United States - about 160 billion pieces in 2012. The U.S. Postmaster General stated that the system is primarily used for mail sorting, but the images are available for possible use by law enforcement agencies. Created in 2001 following the anthrax attacks that killed five people, it is a sweeping expansion of a 100-year-old program called " mail cover" which targets people suspected of crimes. Together, the two programs show that postal mail is subject to the same kind of scrutiny that the National Security Agency gives to telephone calls, e-mail, and other forms of electronic communication.

Mail cover surveillance requests are granted for about 30 days, and can be extended for up to 120 days. Images captured under the Mail Isolation Control and Tracking program are retained for a week to 30 days and then destroyed. There are two kinds of mail covers: those related to criminal activity and those requested to protect national security. Criminal activity requests average 15,000 to 20,000 per year, while the number of requests for national security mail covers has not been made public. Neither the Mail Isolation Control and Tracking program nor the mail cover program require prior approval by a judge. For both programs the information gathered is metadata from the outside of the envelope or package for which courts have said there is no expectation of privacy. Opening the mail to view its contents would require a warrant approved by a judge.

Billions of dollars per year are spent, by agencies such as the Information Awareness Office, National Security Agency, and the Federal Bureau of Investigation, to develop, purchase, implement, and operate systems such as Carnivore, ECHELON, and NarusInsight to intercept and analyze the immense amount of data that traverses the Internet and telephone system every day.

The Total Information Awareness program, of the Information Awareness Office, was formed in 2002 by the Pentagon and led by former rear admiral John Poindexter. The program designed numerous technologies to be used to perform mass surveillance. Examples include advanced speech-to-text programs (so that phone conversations can be monitored en-masse by a computer, instead of requiring human operators to listen to them), social network analysis software to monitor groups of people and their interactions with each other, and "Human identification at a distance" software which allows computers to identify people on surveillance cameras by their facial features and gait (the way they walk). The program was later renamed " Terrorism Information Awareness", after a negative public reaction.

The Communications Assistance for Law Enforcement Act (CALEA), passed in 1994, requires that all U.S. telecommunications companies modify their equipment to allow easy wiretapping of telephone, VoIP, and broadband Internet traffic.

In 1999 two models of mandatory data retention were suggested for the US. The first model would record the IP address assigned to a customer at a specific time. In the second model, "which is closer to what Europe adopted", telephone numbers dialed, contents of Web pages visited, and recipients of e-mail messages must be retained by the ISP for an unspecified amount of time. In 2006 the International Association of Chiefs of Police adopted a resolution calling for a "uniform data retention mandate" for "customer subscriber information and source and destination information." The U.S. Department of Justice announced in 2011 that criminal investigations "are being frustrated" because no law currently exists to force Internet providers to keep track of what their customers are doing.

The Electronic Frontier Foundation has an ongoing lawsuit ( Hepting v. AT&T) against the telecom giant AT&T Inc. for its assistance to the U.S. government in monitoring the communications of millions of American citizens. It has managed thus far to keep the proceedings open. Recently the documents, which were exposed by a whistleblower who had previously worked for AT&T, and showed schematics of the massive data mining system, were made public.

The FBI developed the computer programs " Magic Lantern" and CIPAV, which it can remotely install on a computer system, in order to monitor a person's computer activity.

The NSA has been gathering information on financial records, Internet surfing habits, and monitoring e-mails. It has also performed extensive surveillance on social networks such as Facebook. Recently, Facebook has revealed that, in the last six months of 2012, they handed over the private data of between 18,000 and 19,000 users to law enforcement of all types-including local police and federal agencies, such as the FBI, Federal Marshals and the NSA. One form of wiretapping utilized by the NSA is RADON, a bi-directional host tap that can inject Ethernet packets onto the same target. It allows bi-directional exploitation of Denied networks using standard on-net tools. The one limitation of RADON is that it is a USB device that requires a physical connection to a laptop or PC to work. RADON was created by a Massachusetts firm called Netragard. Their founder, Adriel Desautels, said about RADON, "it is our 'safe' malware. RADON is designed to enable us to infect customer systems in a safe and controllable manner. Safe means that every strand is built with an expiration date that, when reached, results in RADON performing an automatic and clean self-removal."

The NSA is also known to have splitter sites in the United States. Splitter sites are places where a copy of every packet is directed to a secret room where it is analyzed by the Narus STA 6400, a deep packet inspection device. Although the only known location is at 611 Folsom Street, San Francisco, California, expert analysis of Internet traffic suggests that there are likely several locations throughout the United States.

In September 2022 the EFF and AP revealed their investigation into the use of advertising IDs to develop the Fog Reveal database. Fog Reveal aggregates location data from mobile applications, which is then supplied as a service to United States law enforcement agencies.

The PRISM special source operation system was enabled by the Protect America Act of 2007 under President Bush and the FISA Amendments Act of 2008, which legally immunized private companies that cooperated voluntarily with US intelligence collection and was renewed by Congress under President Obama in 2012 for five years until December 2017. According to The Register, the FISA Amendments Act of 2008 "specifically authorizes intelligence agencies to monitor the phone, email, and other communications of U.S. citizens for up to a week without obtaining a warrant"[citation needed ] when one of the parties is outside the U.S.

PRISM was first publicly revealed on 6 June 2013, after classified documents about the program were leaked to The Washington Post and The Guardian by Edward Snowden.

In early 2006, reported that several major telephone companies were cooperating illegally with the National Security Agency to monitor the phone records of U.S. citizens, and storing them in a large database known as the NSA call database. This report came on the heels of allegations that the U.S. government had been conducting electronic surveillance of domestic telephone calls without warrants.

Law enforcement and intelligence services in the United States possess technology to remotely activate the microphones in cell phones in order to listen to conversations that take place nearby the person who holds the phone.

U.S. federal agents regularly use mobile phones to collect location data. The geographical location of a mobile phone (and thus the person carrying it) can be determined easily (whether it is being used or not), using a technique known multilateration to calculate the differences in time for a signal to travel from the cell phone to each of several cell towers near the owner of the phone.

In 2013, the existence of the Hemisphere Project, through which AT&T provides call detail records to government agencies, became publicly known.

As worldwide sales of smartphones began exceeding those of feature phones, the NSA decided to take advantage of the smartphone boom. This is particularly advantageous because the smartphone combines a myriad of data that would interest an intelligence agency, such as social contacts, user behavior, interests, location, photos and credit card numbers and passwords.

An internal NSA report from 2010 stated that the spread of the smartphone has been occurring "extremely rapidly"-developments that "certainly complicate traditional target analysis." According to the document, the NSA has set up task forces assigned to several smartphone manufacturers and operating systems, including Apple Inc.'s iPhone and iOS operating system, as well as Google's Android mobile operating system. Similarly, Britain's GCHQ assigned a team to study and crack the BlackBerry.

Under the heading "iPhone capability", the document notes that there are smaller NSA programs, known as "scripts", that can perform surveillance on 38 different features of the iPhone 3 and iPhone 4 operating systems. These include the mapping feature, voicemail and photos, as well as Google Earth, Facebook and Yahoo! Messenger.

The FBI collected nearly all hotel, airline, rental car, gift shop, and casino records in Las Vegas during the last two weeks of 2003. The FBI requested all electronic data of hundreds of thousands of people based on a very general lead for the Las Vegas New Year's celebration. The Senior VP of The Mirage went on record with PBS' Frontline describing the first time they were requested to help in the mass collection of personal information.

Wide Area Persistent Surveillance (also Wide Area Motion Imaging) is a form of airborne surveillance system that collects pattern-of-life data by recording motion images of an area larger than a city - in sub-meter resolution. This video allows for anyone within the field of regard to be tracked - both live and retroactively, for forensic analysis. The use of sophisticated tracking algorithms applied to the WAMI dataset also enables mass automated geo-location tracking of every vehicle and pedestrian. WAMI sensors are typically mounted on manned airplanes, drones, blimps and aerostats. WAMI is currently in use on the southern border of the US and has been deployed in Baltimore, Dayton Ohio as well as in Los Angeles, specifically targeting Compton. Wide Area Persistent Surveillance systems such as ARGUS WAMI are capable of live viewing and recording a 68 square mile area with enough detail to view pedestrians and vehicles and generate chronographs.[citation needed ] These WAMI cameras, such as Gorgon Stare, Angelfire, Hiper Stare, Hawkeye and ARGUS, create airborne video so detailed that pedestrians can be followed across the city through forensic analysis. This allows investigators to rewind and playback the movements of anyone within this 68 square mile area for hours, days or even months at a time depending on the airframe the WAMI sensors are mounted on. JLENS, a surveillance aerostat scheduled for deployment over the east coast of the US, is a form of WAMI that uses sophisticated radar imaging along with electro-optical WAMI sensors to enable mass geo-location tracking of ground vehicles.

While a resistance to the domestic deployment of WAMI has emerged in areas where the public has learned of the technologies use, the deployments have been intentionally hidden from the public, as in Compton California, where the mayor learned about the surveillance from groups like the American Civil Liberties Union, Teame Zazzu and the Center for Investigative Reporting.

PeSEAS and PerMIATE software automate and record the movement observed in the WAMI video. This technology uses software to track and record the movements of pedestrians and vehicles using automatic object recognition software across the entire frame, generating "tracklets" or chronographs of every car and pedestrian movements. 24/7 deployment of this technology has been suggested by the DHS on spy blimps such as the recently killed Blue Devil Airship.

Traffic cameras, which were meant to help enforce traffic laws at intersections, have also sparked some controversy, due to their use by law enforcement agencies for purposes unrelated to traffic violations. These cameras also work as transit choke-points that allow individuals inside the vehicle to be positively identified and license plate data to be collected and time stamped for cross reference with airborne WAMI such as ARGUS and HAWKEYE used by police and Law Enforcement.

The Department of Homeland Security is funding networks of surveillance cameras in cities and towns as part of its efforts to combat terrorism. In February 2009, Cambridge, MA rejected the cameras due to privacy concerns.

In July 2020, the Electronic Frontier Foundation (EFF) reported that the San Francisco Police Department (SFPD) used a camera network in the city's Business Improvement District amid protests against police violence. The report claims that the SFPD's usage of the camera network went beyond investigating footage, likening the department's access to real-time video feeds as "indiscriminate surveillance of protestors."

On 19 June 2013, FBI Director Robert Mueller told the United States Senate Committee on the Judiciary that the federal government had been employing surveillance drones on U.S. soil in "particular incidents". According to Mueller, the FBI is currently in the initial stage of developing drone policies.

In February 2013, a spokesman for the Los Angeles Police Department explained that these drones would initially be deployed in large public gatherings, including major protests. Over time, tiny drones would be used to fly inside buildings to track down suspects and assist in investigations. According to The Los Angeles Times, the main advantage of using drones is that they offer "unblinking eye-in-the-sky coverage". They can be modified to carry high-resolution video cameras, infrared sensors, license plate readers, listening devices, and be disguised as sea gulls or other birds to mask themselves.

The FBI and Customs and Border Protection have used drones for surveillance of protests by the Black Lives Matter movement.

The New York City Police Department infiltrated and compiled dossiers on protest groups before the 2004 Republican National Convention, leading to over 1,800 arrests and subsequent fingerprinting.

During World War II, the BRUSA Agreement was signed by the governments of the United States and the United Kingdom for the purpose of intelligence sharing. This was later formalized in the UKUSA Agreement of 1946 as a secret treaty. The full text of the agreement was released to the public on 25 June 2010.

Although the treaty was later revised to include other countries such as Denmark, Germany, Ireland, Norway, Turkey, and the Philippines, most of the information sharing is performed by the so-called "Five Eyes", a term referring to the following English-speaking western democracies and their respective intelligence agencies:

In 2013, media disclosures revealed how other government agencies have cooperated extensively with the " Five Eyes":

- The Bundesnachrichtendienst (Federal Intelligence Service) of Germany systematically transfers metadata from German intelligence sources to the NSA. In December 2012 alone, Germany provided the NSA with 500 million metadata records. The NSA granted the Bundesnachrichtendienst access to X-Keyscore,[152] in exchange for Mira4 and Veras. In early 2013, Hans-Georg Maaßen, President of the German domestic security agency BfV, made several visits to the headquarters of the NSA. According to classified documents of the German government, Maaßen had agreed to transfer all data collected by the BfV via XKeyscore to the NSA.[153] In addition, the BfV has been working very closely with eight other U.S. government agencies, including the CIA.[154]

- The SIGINT National Unit of Israel routinely receives raw intelligence data (including those of U.S. citizens) from the NSA.[155] (See also: Memorandum of understanding between the NSA and Israel)

- The Algemene Inlichtingen en Veiligheidsdienst (General Intelligence and Security Service) of the Netherlands has been receiving and storing user information gathered by U.S. intelligence sources such as PRISM.[156]

- The Defence Ministry of Singapore and its Security and Intelligence Division have been secretly intercepting much of the fibre optic cable traffic passing through the Asian continent. Information gathered by the Government of Singapore is transferred to the Government of Australia as part of an intelligence sharing agreement. This allows the "Five Eyes" to maintain a "stranglehold on communications across the Eastern Hemisphere".[157]

- The National Defence Radio Establishment of Sweden (codenamed Sardines)[158] has been working extensively with the NSA, and it has granted the "five eyes" access to underwater cables in the Baltic Sea.[158]

- The Federal Intelligence Service (FSI) of Switzerland regularly exchanges information with the NSA, based on a secret agreement.[150][159] In addition, the NSA has been granted access to Swiss monitoring facilities in Leuk (canton of Valais) and Herrenschwanden (canton of Bern).[150]

Aside from the "Five Eyes", most other Western countries are also participating in the NSA surveillance system and sharing information with each other. However, being a partner of the NSA does not automatically exempt a country from being targeted by the NSA. According to an internal NSA document leaked by Snowden, "We (the NSA) can, and often do, target the signals of most 3rd party foreign partners."

Examples of members of the " Five Eyes" spying for each other:

Most of the NSA's collected data which was seen by human eyes (i.e., used by NSA operatives) was used in accordance with the stated objective of combating terrorism.

Other than to combat terrorism, these surveillance programs have been employed to assess the foreign policy and economic stability of other countries.

According to reports by Brazil's O Globo newspaper, the collected data was also used to target "commercial secrets". In a statement addressed to the National Congress of Brazil, journalist Glenn Greenwald testified that the U.S. government uses counter-terrorism as a "pretext" for clandestine surveillance in order to compete with other countries in the "business, industrial and economic fields".

In an interview with Der Spiegel published on 12 August 2013, former NSA Director Michael Hayden admitted that "We [the NSA] steal secrets. We're number one in it". Hayden also added that "We steal stuff to make you safe, not to make you rich".

According to documents seen by the news agency Reuters, information obtained in this way is subsequently funnelled to authorities across the nation to help them launch criminal investigations of Americans. Federal agents are then instructed to "recreate" the investigative trail in order to "cover up" where the information originated, known as parallel construction. (Were the true origins known, the evidence and resulting case might be invalidated as " fruit of the poisonous tree", a legal doctrine designed to deter abuse of power that prevents evidence or subsequent events being used in a case if they resulted from a search or other process that does not conform to legal requirements.)

Most agricultural surveillance is not covert and is carried out by government agencies such as APHIS (USDA's Animal and Plant Health Inspection Service). DHS has lamented the limited surveillance coverage provided by these inspections and works to augment this protection with their own resources.

"The NSA Files". The Guardian. London. 8 June 2013. Dozens of articles about the U.S. National Security Agency and its spying and surveillance programs

CriMNet Evaluation Report by the Office of the Legislative Auditor of Minnesota, March 2004; part of a program to improve sharing of criminal justice information.

Smyth, Daniel. "Avoiding Bloodshed? US Journalists and Censorship in Wartime", War & Society, Volume 32, Issue 1, 2013. doi:10.1179/0729247312Z.00000000017.

Deflem, Mathieu; Silva, Derek, M.D.; and Anna S. Rogers. 2018. "Domestic Spying: A Historical-Comparative Perspective". pp. 109-125 in The Cambridge Handbook of Social Problems, Volume 2, edited by A. Javier Treviño. New York: Cambridge University Press.

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Mass surveillance in the United States - Wikipedia

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The practice of mass surveillance in the United States dates back to wartime monitoring and censorship of international communications from, to, or which passed through the United States. After the First and Second World Wars, mass surveillance continued throughout the Cold War period, via programs such as the Black Chamber and Project SHAMROCK.

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Since 9/11, Congress and the executive branch have collaborated on the creation of a new national security apparatus.

On December 20, 2002, a Senate Intelligence Committee that included Sen. Ron Wyden, D-Ore., today one of the most vociferous critics of the so-called "surveillance state," came to the following conclusion in its official report on the mistakes that led to 9/11: The National Security Agency had harmed U.S. counterterrorism efforts that might have prevented that terrible day because of the agency's "failure to address modern communications technology aggressively."

The report, a joint effort of the Senate committee and the House Permanent Select Committee on Intelligence, blamed "NSA's cautious approach to any collection of intelligence relating to activities in the United States, and insufficient collaboration between NSA and the FBI regarding the potential for terrorist attacks within the United States."

The Senate-House report said the NSA simply could not keep up with the explosion of information technology. "Only a tiny fraction" of the NSA's 650 million daily intercepts worldwide "are actually ever reviewed by humans, and much of what is collected gets lost in the deluge of data," the report said. In interviews at the time, then-NSA Director Michael Hayden explained why: The NSA, originally authorized to conduct monitoring only overseas, was effectively a Cold War dinosaur that was going "deaf" since its main mission of tracking "signals intelligence," known as Sigint, from the Soviet Union had ended.

"We have gone from chasing the telecommunications structure of a slow-moving, technologically inferior, resource-poor nation-state--and we could do that pretty well - to chasing a communications structure in which an al-Qaida member can go into a storefront in Istanbul and buy for $100 a communications device that is absolutely cutting edge, and for which he has had to make no investment in its development. That's what we've got to deal with," Hayden told me in an interview in mid-2002.

In congressional testimony leading up to that critical Senate-House report, Hayden explained the NSA had gone from tracking a relatively small number of Soviet communications pipelines -- microwave transmissions, for example, from Moscow to various ICBM bases -- to trying to keep up with billions of conversations on phones and emails in a world in which technological borders had been erased, and much of this traffic was now being routed through the United States. This huge new challenge was coming at a time when the super-secret agency had "downsized about a third of its manpower and about the same proportion of its budget in the '90s," the era of the so-called post-Cold War peace dividend, Hayden said in his testimony. "That's the same decade when mobile cell phones increased from 16 million to 741 million--an increase of 50 times. That's the same decade when Internet users went from about four to 361 million."

These perceived deficiencies, and the NSA's aggressive efforts to redress them since then, make up the real backdrop to the latest scandal that has engulfed Washington, this time over what appears to be a massive infringement of American civil liberties. And despite the outrage voiced by senators such as Wyden and other critics, the truth about what the NSA and intelligence and investigative community is doing is far more complex than the rhetoric might lead you to believe.

Most important of all, almost the entire U.S. government has been on board in promoting it.

After many struggles and failures in the last decade, the NSA did finally come up with new approaches to keeping up with the traffic. One such approach was the NSA's "PRISM" program, disclosed Thursday by The Washington Post and the Guardian newspaper. The newspapers revealed that the NSA and FBI have set up a program to tap directly into the central servers of nine leading U.S. Internet companies, "extracting audio and video chats, photographs, e-mails, documents, and connection logs that enable analysts to track one target or trace a whole network of associates," as the Post wrote. The program was reportedly set up in cooperation with the major companies, including Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube and Apple. Congress, following up on its original report, had given the government authority to do this under the Protect America Act in 2007 and the FISA, or Foreign Intelligence Surveillance Act, Amendments Act of 2008, which immunized private companies that cooperated voluntarily with U.S. intelligence collection.

The NSA has also conducted a regular program to monitor phone conversations. The agency and the FBI, now cooperating much as the original Senate-House report urged them to do, won a secret order from the Foreign Intelligence Surveillance Court on April 25, giving the government unlimited authority for three months to amass the telephone records of millions of U.S. customers of Verizon, according a report in The Guardian. Sen. Dianne Feinstein, D-Calif., the chairwoman of the Senate Intelligence Committee, said the order appeared to be merely a "three-month renewal of what has been in place for the past seven years." Feinstein and many other senators defended the program that they themselves set in motion in the last decade. Rep. Mike Rogers, R-Mich., chair of the House intelligence committee, said that "within the last few years, this program was used to stop a terrorist attack in the United States."

Nonetheless, the NSA/FBI programs have raised very real concerns over whether this domestic surveillance has violated constitutional protections of privacy for Americans, despite efforts to restrict the data collection to foreign sources. Intelligence professionals counter that the perception of a Big-Brother-like surveillance state must be balanced against the equally real concerns about tracking terrorists that date back to 9/11, issues that have still not been fully resolved today.

The challenge is that even now, in spite of these programs, the intelligence community remains overwhelmed by data, and as the Boston Marathon bombings in April showed, it is very difficult to piece together clues in time to stop an attack. "There are massive gaps in our ability to actually analyze data. Much of the data just sits there and nobody looks at it," says one former NSA official who would discuss classified programs only on condition of anonymity. "People can do pretty horrific things on their own. Whether with explosive devices, or chemicals or biological agents. Everybody's walking around with these devastating weapons. How are you going to stop that?"

Intelligence professionals say that it is only with mass data collection that they can find the key "intersections" of data that allow them to piece together the right clues. For example, if an individual orders a passport and supplies an address where some suspicious people are known to be, that might raise some concerns - without, however, leading to a definite clue to a plot. Yet if the same person who ordered the passport also buys a lot of fertilizer at another address, then only the intersection of those two data points will make the clues add up to a threat that authorities can act on. In a Jan. 30, 2006 op-ed in The New York Times headlined "Why We Listen," former NSA senior director Philip Bobbitt provided a vivid example of how this "threat matrix" works. On Sept. 10, 2001, he wrote, the NSA intercepted two messages: ''The match begins tomorrow'' and ''Tomorrow is zero hour.'' They were picked up from random monitoring of pay phones in areas of Afghanistan where Al Qaeda was active. No one in the intel community knew what to make of them, and in any case they were not translated or disseminated until Sept. 12. But, Bobbitt wrote, "had we at the time cross-referenced credit card accounts, frequent-flyer programs and a cellphone number shared by those two men, data mining might easily have picked up on the 17 other men linked to them and flying on the same day at the same time on four flights."

In the early years after the 2002 congressional report, the NSA sought to redress this problem, setting up a giant $1 billion-plus program called Trailblazer that was to have brought the agency up to date in such pattern analysis and "data mining." The program was to have transformed the NSA's blizzard of signals intelligence into an easily searchable database.

But Trailblazer turned into such a boondoggle. What went wrong? The NSA, using traditional defense contractors like Science Applications International Corp. (SAIC), sought to do too much at once, applying a clunky top-down solution to what was a Silicon Valley problem, Ed Giorgio, who was the chief codebreaker at NSA for 30 years, told me in an interview in 2006. "The biggest problem with Trailblazer was there was a grand theory of unification that was going to solve the problem, as if the 'central committee' could really do what's best done by a distributed network of people," he said. Fred Cohen, a former computer scientist at Sandia Labs, said then that what the NSA failed at was "to put out enough small money to enough different creative thinkers to explore a lot more possibilities."

Now the NSA has apparently done just that, deploying America's most advanced tech companies in its restless search for threats.

On March 12 of this year, at a hearing of the Senate Intelligence Committee, Wyden asked James Clapper, the director of national intelligence: "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" Clapper responded: "No, sir." When Wyden followed up by asking, "It does not?" Clapper said: "Not wittingly. There are cases where they could, inadvertently perhaps, collect--but not wittingly."

In an interview on Thursday, Clapper sought to clarify his remarks. "What I said was, the NSA does not voyeuristically pore through U.S. citizens' e-mails. I stand by that," he told National Journal.

Clapper's earlier denial was broader than that, of course, and his narrower version this week isn't going to satisfy critics -- especially as details of PRISM leak out. But make no mistake: Wyden knew the answers before he asked the question. Wyden, in fact, along with another Democrat on the Senate intelligence committee, Mark Udall of Colorado, has been warning for some time that the programs he helped to promote a decade before had now, in his view, overreached. "I do not take a back seat to any member of this body in terms of protecting the sources and methods of those in the intelligence community," Wyden said in a speech at the end of 2012. But he said those programs "should never be a secret from the American people."

We want to hear what you think about this article. Submit a letter to the editor or write to letters@theatlantic.com.

News and updates from the editors of National Journal magazine.

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Since 9/11, Congress and the executive branch have collaborated on the creation of a new national security apparatus. On December 20, 2002, a Senate Intelligence Committee that included Sen. Ron Wyden, D-Ore., today one of the most vociferous critics of the so-called "surveillance state," came to the following conclusion in its official report on the mistakes that led to 9/11: The National Security Agency had harmed U.S.

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The potential of the National Security Agency (NSA) "to violate the privacy of American citizens is unmatched by any other intelligence agency," especially as telecommunication technology advances.

Perhaps surprisingly, that warning was not issued in the wake of the cache of documents leaked by former civilian security contractor Edward Snowden to the Washington Post and the Guardian this past summer. It was made instead in the 1970s by the Senate's Church Committee when it held hearings on the activities of the CIA, the FBI, and the NSA.

Domestic surveillance intended to protect American citizens has been a part of the fabric of American life for more than a hundred years. Yet, the massive NSA intelligence-gathering programs revealed by Snowden are unprecedented in their sheer scale, their advanced technologies, and in the legal foundation that the Foreign Intelligence Surveillance Court offered them.

One NSA program, unofficially called 215, collected metadata from U.S. telecommunications companies, revealing the date, time, location, and recipient of phone calls across the United States. The agency also monitored foreign emails through a program called Prism, part of a larger internet collection effort called Upstream; while targeted abroad, the NSA has admitted that U.S. emails were gathered up as part of the program. One of the documents leaked to the Guardian claimed that the NSA's tools allowed them to see "nearly everything a typical user does on the internet."

President Barack Obama condemned Snowden for leaking, claiming there were other, official channels through which Snowden could have made known his concerns with the program. Obama presented the activities as part of a necessary activity to protect the United States from terrorism, while asserting that laws prevented the "willy-nilly" taking of private information. He promised that reforms would be made to foster greater trust in the system.

While the Snowden revelations have created tremendous controversy in the United States and around the world (as Germany's Angela Merkel will attest), some of the questions the documents raise have been with us for at least a century.

Can an intelligence agency successfully operate within the bounds of the law and under the supervision of a democratic government? Can the United States spy on foreign targets without creating an organization able to spy domestically? Can a line be successfully drawn between domestic and foreign intelligence? Can we ensure that innocent citizens do not get caught up in the hunt for internal enemies? Who should be considered an internal enemy?

Regardless of what happens in the wake of the Snowden controversy, these tensions are not likely to evaporate as long as the United States continues to engage in any form of spying and to search domestically for enemies, both real and perceived.
Keeping Tabs on Anarchists and Bolsheviks
Before the United States worried about the threat of jihadi terrorists, the nation was gripped by a fear of anarchists.

Political terrorists had killed scores of European officials in the last decades of the nineteenth century. Even Tsar Alexander II of Russia, liberator of the serfs, had been blown up on the streets of St. Petersburg.

And the U.S. was not immune to this violence. In September 1901, U.S. President William McKinley was assassinated by anarchist Leon Czolgosz in Buffalo, New York.

Robert Pinkerton, of the famous private Pinkerton detective agency that had supplied the Union with intelligence during the Civil War and spent subsequent decades helping break labor movements, advised that radicals "should be marked and kept under constant surveillance."

Theodore Roosevelt, who succeeded McKinley, did not immediately follow Pinkerton's advice. In 1908, though, he directed the Attorney General, Charles Bonaparte (the great-nephew of Napoleon) to set up an investigative service within the Department of Justice. Congress, however, turned him down.

The Congressmen did not want to create a secret, internal police similar to those employed by European governments, like the Russian Okhrana. Not discouraged, Bonaparte waited until Congress adjourned and, with the approval of Roosevelt, established the Bureau of Investigation in December 1908.

Shortly thereafter, as the United States was drawn into World War I, the modest bureau expanded to meet the challenge of ensuring internal security, especially the perceived threat of Germans living in the United States. As President Woodrow Wilson began to crack down on domestic dissent with the Espionage Act, the bureau began its long career of hunting down spies and radicals.

The bureau was joined in these efforts by the Office of Naval Intelligence. The ONI had its own programs against potential domestic threats, which soon expanded beyond looking for potential foreign spies to investigating "subversive elements."

After the war, Bolsheviks replaced Germans as the chief focus of the nascent intelligence community. A hunt for communists ensued, driven on by fear of the new Soviet regime, which emerged in November 1917.

In 1919, a series of bomb attacks on government targets convinced many Americans that threats from anarchists and Bolsheviks were clear and present. In the wake of the bombings, Attorney General A. Mitchell Palmer launched a series of raids on radicals in cities around the country, though many had no connection to any violent organization.

The First Red Scare, as it came to be known, resulted in deportations including well-known figures like Emma Goldman, and it broke the back of the Industrial Workers of the World, a prominent union.

To lead the charge against subversives, Palmer created the Radical Division of the Bureau of Investigation, and selected 24-year-old J. Edgar Hoover to lead it. Hoover assumed his new position August 1, 1919, and would spend the rest of his life, more than 50 years, directing law enforcement against communists.

When the FBI was organized from the Bureau of Investigation in 1935, Hoover became its first director. He remained a committed anticommunist. To Hoover, however, "communist" became synonymous with almost anyone on the political left. Under Hoover, various leftist organizations would be infiltrated by federal informants.

In addition to the use of informants to gather human intelligence, early electronic surveillance was used in the tapping of phones. Such tapping was deemed legal by the Supreme Court in the 1927 case Olmstead v. United States, which found that the wiretapping of phones did not violate the Fourth or Fifth Amendments. That decision would not be reversed until 1967.

Domestic surveillance continued in the 1930s, much of it legal although sometimes exceeding legal limits. At the request of Franklin Roosevelt, Hoover begrudgingly began investigations of the American fascist movement. He also monitored civil rights groups, suspecting them of communist influence.

Captain Hayne Ellis, the director of the ONI in 1931, expanded beyond communist groups to investigate pacifist organizations like the National Council for the Prevention of War and the Women's League for Peace.

As war loomed in Europe, FDR in 1939 directed the FBI, ONI, and the Military Intelligence Division to take charge of tracking subversives in the United States.
The Cold War: The Modern Architecture of Surveillance Takes Shape
World War II witnessed, amongst other things, the birth of the first centralized U.S. intelligence organization, the Office of Strategic Services. Included in its mandate was counter-intelligence, a duty it shared with the FBI. Like the FBI, the OSS would occasionally ignore legal requirements in its pursuit of subjects, most notably when pursuing State Department leaks to the magazine Amerasia.

By the end of World War II, domestic intelligence responsibilities in the United States had grown-in fits and starts-and were now included in the purview of several government agencies under the big umbrella of "national security." How that term was defined, and who, therefore, constituted a threat to it, was left to particular organizations and their leaders. Thus groups such as the Women's League for Peace and the National Association for the Advancement of Colored People found themselves at various times considered national security threats and placed under surveillance.

As the nation moved from World War II to Cold War, domestic security became even more a priority. The tension between the United States and Soviet Union led to a variety of activities against communist organizations in America, and organizations perceived to be affiliated with communism. This environment produced many of the secretive and shrouded security organizations we know today in the United States.

In 1947, the National Security Act established the Central Intelligence Agency. Similar to concerns over the original Bureau of Investigation, opponents warned the CIA could become a secret police force, an American Gestapo. To forestall any abuse of the intelligence system, Congress forbade the CIA from operating domestically, leaving domestic security the responsibility of the FBI.

Five years later and with considerably less publicity, the National Security Agency was founded to take responsibility for U.S. signals intelligence, guarding U.S. electronic communications and breaking the encryptions of the enemy.

Like the CIA, the NSA was directed not to spy domestically. Unlike the CIA, the NSA remained under the radar, to such an extent that its staff jokingly claimed its initials stood for "No Such Agency."

By 1963, the NSA operated from a massive facility at Fort Meade, Maryland, and was busily at work intercepting and decrypting communications. By 1980, the NSA was classifying fifty to one hundred million reports each year, which, in an era of paper and magnetic tape records, led to a serious problem with materials storage.

The growth of the U.S. national security apparatus was matched by a growing fear within the United States of communist infiltration and subversion. However, it would be one of the older organizations, the FBI, which proved most aggressive against a perceived communist threat.

Through several turns of good fortune, the FBI was able to uncover several networks of Soviet spies in the United States. Hoover, in addition to directing the FBI's more legitimate counter-intelligence activities, cooperated with hardcore anticommunist politicians such as Richard Nixon and Joseph McCarthy.
The Fine Line between Domestic and Foreign
In 1956, under the orders of Hoover and the direct supervision of the chief of research and analysis in the FBI's Intelligence Division, William Sullivan, the first FBI Counter Intelligence Program (COINTELPRO) was launched. COINTELPRO was the next stage of evolution in the FBI's anticommunist agenda.

While including domestic surveillance, COINTELPRO went far beyond mere monitoring. COINTELRPO sought actively to disrupt targets by spreading false information within the ranks of targeted groups-a practice that at times led some groups to retaliate violently against, and even murder, those set up to appear to be informers. A variety of COINTELPROs, each directed at a specific target, would be established by the 1970s.

The CIA did not begin domestic spying programs in the 1950s. It did, however, begin some long-lasting domestic programs at that time. Under the direction of intelligence veteran Thomas Braden, the CIA began to wage a "cultural Cold War," funding domestic and international leftist anticommunist organizations in the hope of forming a reliable non-communist left. At home, this consisted of a variety of activities, such as supporting the work of Jackson Pollack and funding the National Student Association.

These domestic activities violated the CIA's mandate not to operate in the United States, but they had the general approval of the president. Many of those the CIA supported did not know where their money came from.

For example, most members of the National Student Association had no idea the CIA provided them with funds. In 1964 the president of the group explained that the mysterious funds it had received came from a wealthy Greek rug merchant whom he had met on a train. The rug merchant had apparently been so moved by the organization's activities that he generously provided money to help them meet operating costs.

The precedent for their domestic activities established, the CIA expanded those activities to include surveillance during the tumultuous 1960s. As opposition to the Vietnam War increased at home, President Johnson grew convinced that part of the problem had to be that foreign agents were aiding the antiwar effort, and also, he feared, stoking the fires of the race riots that destabilized U.S. cities during the long hot summers of the 1960s. In 1967, he directed then-CIA director Richard Helms to investigate these possibilities.

Under the codename CHAOS, the CIA infiltrated the antiwar movement. The program expanded under Nixon, who like Johnson insisted foreign elements were behind the movement, leaving Helms straining to prove a negative by widening the surveillance net on the antiwar movement.

Eventually, the CIA recruited 4,067 informers in the antiwar movement. When the program was revealed by Seymour Hersh of the New York Times in 1974, he reported that CHAOS kept 10,000 CIA files on American citizens. That, it turned out, was a low estimate. Subsequent disclosures revealed that CHAOS held an index of 300,000 names, with especially extensive files on 7,200 U.S. citizens.

The NSA also came to monitor domestic targets. Its watch list included Jane Fonda, Joan Baez, Benjamin Spock, and Martin Luther King, Jr., among others. In 1969, the NSA formalized its activities into Operation Minaret, the full details of which have only recently been revealed. The NSA spied on figures such as New York Times reporter Tom Wicker, Washington Post columnist Art Buchwald, and two antiwar U.S. senators, Frank Church and Howard Baker.

The most aggressive domestic operations remained the FBI's COINTELPROs, which, like the CIA, expanded in the 1960s. They investigated the New Left, the civil rights movement, Black Power advocates, and the American Indian Movement.

Hoover had long been suspicious of African Americans, having investigated W.E.B. DuBois in his early days as well as the National Association for the Advancement of Colored People (NAACP). Convinced that King must be a communist, Hoover began monitoring him heavily, eventually running eight wiretaps and 16 bugs on King.

Hoover discovered that King engaged in occasional extramarital affairs. Sullivan, still running the broad range of COINTELRPO operations, had tapes of the affairs sent to King along with a letter urging him to commit suicide.

Ironically, documents leaked from the Soviet KGB after the Cold War revealed that the KGB was engaged in a similar operation. Convinced that America's racial tension would ultimately lead to a U.S. collapse, the KGB were disheartened that King's message for social justice did not advocate communism.

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America's "Big Brother": A Century of U.S. Domestic Surveillance | Origins: Current Events in Historical Perspective

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The potential of the National Security Agency (NSA) "to violate the privacy of American citizens is unmatched by any other intelligence agency," especially as telecommunication technology advances.

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In the past week, Americans have learned of a dizzying array of heretofore unrevealed surveillance programs, part of a hidden security structure ostensibly designed to prevent terrorist attacks from ever occurring on U.S. soil again. Reactions from commentators have ranged from furious outrage to reasoned concern to outright dismissal of the programs' implications. Those in the latter camp have begun to rail against former Booz Allen Hamilton contractor Edward Snowden for his release of the National Security Agency documents that have sparked a furious debate over the balance between privacy and security in the digital age; meanwhile, opponents have dismissed him as an unhinged narcissist or a sociopathic nerd.

Whether his actions are moral or justifiable is up for debate, but Snowden himself made his motivations clear in his email correspondence with Washington Post reporterBarton Gellman. In his view, America's security state has simply become too large and intrusive in the face of the relatively minor threat of terrorism. "We managed to survive greater threats in our history ... than a few disorganized terrorist groups and rogue states without resorting to these sorts of programs," he told Gellman.

It's a fascinating quote. But one must wonder whether his statement - so compelling on its surface - holds true after an examination of U.S. history. Precisely when, exactly, was the period that he refers to, when a threat greater than those we face today was bravely met without any serious infringements on liberty? Was there ever such a period?

Moving backward through history, we can first quickly dispense with the last 12 years. Following 9/11, President George W. Bush's administration enacted policies that will likely become synonymous with executive overreach, the policies many of President Barack Obama's supporters are now disappointed he didn't do more to rein in. These included the National Security Agency's program of illegally wiretapping American citizens without a warrant, first revealed in 2005, which set the stage for today's concerns about whether the agency is in the habit of using its vast infrastructure to find and store every crumb of data about millions of people in the country. Muslim Americans also saw themselves the frequent victims of assaults on their civil liberties, finding themselves on the receiving end of enhanced scrutiny and frequent harassment from law enforcement.

It's equally doubtful that Snowden was thinking of the 1960s and 1970s when he spoke to Gellman. Befitting a period of social change and upheaval, many of the threats the government sought to counter during this period were internal in nature. It was also a time when U.S. security agencies, both domestic and foreign, held more power than they ever have at any point, as Congress routinely ignored its oversight responsibilities. The work of the Federal Bureau of Investigation is best remembered for the harassment of civilians taking part in the civil rights movement or other activities deemed subversive. Even as lauded a peace advocate as the Rev. Martin Luther King Jr. found himself the target of FBI snooping, as agents gathered dirt to potentially discredit him and his movement. The FBI's Counterintelligence Program - better known as COINTELPRO - reached into the lives of people across the ideological spectrum, from the Black Panthers to the Ku Klux Klan, all in the name of protecting security.

It took Congress finally stepping in after Watergate to bring the FBI and other agencies to heel. In the course of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, better known as the Church Committee, a vast network of actions hidden from the public was exposed, ranging from the reading of Americans' mail to crackdowns on Vietnam protesters to Projects SHAMROCK and MINARET.

Under SHAMROCK, all telegraphs to and from the United States were captured as signals intelligence, regardless of their origin or destination. At the program's peak, 15,000 telegrams a month were intercepted. MINARET, meanwhile, analyzed these electronic communications and passed along information on predetermined U.S. citizens to other intelligence and law enforcement agencies for follow-up. MINARET operated from 1969 until 1973, while SHAMROCK was allowed to continue from 1945 all the way until 1975 when NSA Director Lew Allen finally shuttered it. If you were to try to design a perfect historical analogue to today's digital concerns, the activities revealed in the Church Committee's investigations would come close - with the added concern that the content of those documents were examined, rather than just logging the author and recipientbefore sending it on its way.(The concept of "metadata" was still a few decades away.) The committee's findings led to a series of reforms, including the passage of the Foreign Intelligence Surveillance Act, which instituted the Foreign Intelligence Surveillance Court (FISC) to provide much stricter oversight of the executive branch's actions. Unfortunately, those reforms have been chipped away at by successive administrations since then, and the FISC was responsible for authorizing the NSA's metadata collection.

Back in the 1950s, the United States faced a true existential threat in the form of the Soviet Union, and nuclear war seemed a very real possibility. In this climate, the federal government used every tool at its disposal to root out potential subversives - often bending or just outright shattering constitutional principles in the process. In an example of overreach in the legislative branch, that which is supposed to be most closely aligned with the interests of the people, the House Un-American Activities Committee and the Senate's Permanent Subcommittee on Investigation used the sweeping powers Congress had granted itself to conduct countless numbers of hearings into the communist threat to the homeland, including high-profile investigations of Hollywood's writers and actors and Sen. Joseph McCarthy's infamous allegations of communists throughout the government. The committees' investigations led to massive infringement on the rights of freedom of speech and freedom of association.

Going back another leap takes us to World War II, before Snowden's parents were even born. During the war years, the United States massively infringed on Americans' right to privacy in ways at least as great as we see today. In the days after Pearl Harbor, the Office of Censorship was set up under the First War Powers Act, granting its director "absolute discretion" in censoring internal communications. Under this arrangement, postal censorship was put into place in the United States, with all mail that passed throughthe U.S. Postal Service subject to opening, inspection, and follow-up investigation. The program worked closely with the Office of Strategic Services, later to become the CIA, and was deemed necessary to prevent messages between espionage agents planted within the country from going unnoticed. The end of the war saw the creation of the NSA, the new iteration of the wartime Armed Forces Security Agency, and the institution of Projects SHAMROCK and MINARET. And in perhaps one of the most repugnant instances of violating liberty for security, thousands of Japanese-Americans were rounded up and placed into internment camps on the West Coast for the duration of the war. No charges were brought against the families moved to these camps; their relatives' country of origin was evidence enough.

And Snowden probably wouldn't have been thrilled with the U.S. activities during World War I, which saw President Woodrow Wilson and Congress come together to pass the Espionage Act of 1917 - making it a crime to interfere with military operations - and the Sedition Act of 1918, which expanded the former to criminalize any speech that cast the government or the war in a negative light and which allowed the postmaster general to refuse to deliver any mail that he personally feltwould inhibit the war. (If the government prosecutes Snowden for his actions, it would likely be under the Espionage Act.) The Civil War was no triumph of liberty over security either. In fact, it saw the beginning of the modern executive consolidation of power with regard to national security. Abraham Lincoln outright suspended the writ of habeas corpus, the constitutional provision allowing for a speedy trial, to advance the war effort, something no president since then has attempted to do against U.S. citizens. Lincoln also tasked his postmaster general (then a cabinet position), Montgomery Blair, with examining mail in order to root out Confederate sympathizers. As in world wars I and II, all post was considered a legitimate target for intelligence-gathering activities.

Even the Founding Fathers, the supposed exemplars to which Americans set their gaze in times of trouble, failed on this issue. President John Adams signed into law the Sedition Act of 1798 in the face of the "Quasi-War" against France. Under this provision, the U.S. government set aside the First Amendment it had so recently penned and restricted the ability of its citizens to publish documents or give speeches seen as anti-government - all in the name of protecting the country from a threat that never materialized and that few Americans now remember.

Indeed, the truth is that we - and Snowden - do not live in an anomalous time. Rather, history is replete with instance after instance of the U.S. government suppressing or outright violating the rights of its people in the name of furthering national security. In each case, and at each point in history, we see evidence that goes against the idea of a utopian past in which freedoms and liberty went unimpeded while Americans' remained safe and protected within its borders.

This isn't at all to say that the NSA or the Obama administration should get a free pass on allowing these surveillance programs to grow and flourish under their watch. Nor is it meant to make light of the fact that the government now has the ability to copy and store the billions upon billions of pieces of information it intercepts indefinitely in databases for future use, something previous administrations could only dream of. Not nearly enough debate has gone on in the harsh light of day over just what freedoms we are willing to exchange in the name of security. But in conducting that debate, we would do well not to delude ourselves into falsely remembering a time when the United States was innocent of breaking the trust of its people in the name of protecting them. That time never existed.

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America: Choosing Security Over Liberty Since 1798

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In the past week, Americans have learned of a dizzying array of heretofore unrevealed surveillance programs, part of a hidden security structure ostensibly designed to prevent terrorist attacks from ever occurring on U.S. soil again. Reactions from commentators have ranged from furious outrage to reasoned concern to outright dismissal of the programs' implications.

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The U.S. government has been secretly collecting Verizon customers' records. Here is a roundup of CNN.com op-eds on related issues of privacy.

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Holdningen til overvågning i USA i dag

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After the June 2013 leaks by government contractor Edward Snowden about National Security Agency surveillance of Americans' online and phone communications, Pew Research Center began an in-depth exploration of people's views and behaviors related to privacy. Our report earlier this year about how Americans think about privacy and sharing personal information was a capstone of this two-and-a-half-year effort that examined how people viewed not only government surveillance but also commercial transactions involving the capture of personal information.

Soon after the Snowden leaks surfaced, Americans were almost equally divided in a 2014 survey over whether the leaks had served or harmed the public interest. And, at that time, a majority of Americans believed Snowden should be prosecuted. (A campaign, led by the American Civil Liberties Union, has since been organized to seek a pardon for him.)

However much the Snowden revelations may have contributed to the debate over privacy versus anti-terrorism efforts, Americans today - after a series of terrorist events at home and abroad - are more concerned that anti-terrorist programs don't go far enough than they are about restrictions on civil liberties. An August-September survey found that Americans held that view by a 49% to 33% margin.

In this digital age, Americans' awareness and concerns over issues of privacy also extend beyond the kinds of surveillance programs revealed by Snowden and include how their information is treated by companies with which they do business. Our research also has explored that subject in depth. Here are some of the important findings that emerged from this work:

1 Overall, Americans are divided when it comes to their level of concern about surveillance programs. In a survey conducted November 2014-January 2015, 52% described themselves as "very concerned" or "somewhat concerned" about government surveillance of Americans' data and electronic communications, compared with 46% who described themselves as "not very concerned" or "not at all concerned" about the surveillance. Those who followed the news about the Snowden leaks and the ensuing debates were more anxious about privacy policy and their own privacy than those who did not.

The public generally believes it is acceptable for the government to monitor many others, including foreign citizens, foreign leaders and American leaders. Yet 57% said it was unacceptable for the government to monitor the communications of U.S. citizens. At the same time, majorities supported monitoring of those particular individuals who use words like "explosives" and "automatic weapons" in their search engine queries (65% said that) and those who visit anti-American websites (67% said that).

2 Some 86% of internet users have taken steps online to remove or mask their digital footprints, but many say they would like to do more or are unaware of tools they could use. The actions that users have taken range from clearing cookies to encrypting their email, from avoiding using their name to using virtual networks that mask their internet protocol (IP) address. And 55% of internet users have taken steps to avoid observation by specific people, organizations or the government. Many say the purpose of their attempted anonymity is to avoid "social surveillance" by friends and colleagues, rather than the government or law enforcement.

At the same time, many express a desire to take additional steps to protect their data online. When asked if they feel as though their own efforts to protect the privacy of their personal information online are sufficient, 61% say they feel they "would like to do more," while 37% say they "already do enough." Even after news broke about the NSA surveillance programs, few Americans took sophisticated steps to protect their data, and many were unaware of robust actions they could take to hide their online activities. Some 34% of those who said they were aware of the NSA surveillance programs in a July 2013 survey (30% of all adults) had taken at least one step to hide or shield their information from the government. But most of those actions were simple steps, such as changing their privacy settings on social media or avoiding certain apps, rather than tools like email encryption programs, "don't track" plug-ins for browsers or anonymity software.

3 Americans express a consistent lack of confidence about the security of everyday communication channels and the organizations that control them - particularly when it comes to the use of online tools. And they exhibited a deep lack of faith in organizations of all kinds, public or private, in protecting the personal information they collect. Only tiny minorities say they are "very confident" that the records maintained by these organizations will remain private and secure.

4 Some 74% say it is "very important" to them that they be in control of who can get information about them, and 65% say it is "very important" to them to control what information is collected about them. Personal control matters a lot to people. If the traditional American view of privacy is the "right to be left alone," the 21st-century refinement of that idea is the right to control their identity and information. They understand that modern life won't allow them to be "left alone" and untracked, but they do want to have a say in how their personal information is used.

5 Many Americans struggle to understand the nature and scope of data collected about them. When it comes to their own role in managing their personal information, most adults are not sure what information is being collected or how it is being used.

While half of those surveyed said they felt confident they understood how their information would be used, 47% said they were not, and many of these people felt confused, discouraged or impatient when trying to make decisions about sharing their personal information with companies.

6 Fully 91% of adults agree or strongly agree that consumers have lost control of how personal information is collected and used by companies. Half of internet users said they worry about the amount of information available about them online, and most said they knew about key pieces of their personal information that could be found on the internet. Only 9% say they feel they have "a lot" of control over how much information is collected about them and how it is used. Indeed, experts we canvassed about the future of privacy argued that privacy was no longer a "condition" of American life. Rather, they asserted that it was becoming a commodity to be purchased.

7 For most Americans who are making decisions about sharing their information in return for a product, service or other benefit, the context and conditions of the transactions matter. When considering this basic digital era trade-off, many are in an "It depends" frame of mind. Risk-benefit calculations that enter people's minds during the decision process include the terms of the deal; the circumstances of their lives; whether they consider the company or organization involved to be trustworthy; what happens to their data after they are collected, especially if the data are made available to third parties; and how long the data will be retained.

For instance, 54% of Americans consider it an acceptable trade-off to have surveillance cameras in the office in order to improve workplace security and help reduce thefts. But a scenario involving the use of a "smart thermostat" in people's homes that might save energy costs in return for insight about people's comings and goings was deemed "acceptable" by only 27% of adults. It was seen as "not acceptable" by 55%.

Indeed, most Americans assign different degrees of value to different pieces of information. Social Security numbers are ranked as the most sensitive information, while people's purchasing habits ranked lowest as something they felt was very sensitive.

8 Young adults generally are more focused than their elders when it comes to online privacy. Younger adults are more likely to know that personal information about them is available online and to have experienced privacy problems. By the same token, our surveys have found that those ages 18 to 29 are more likely than older adults to say they have paid attention to privacy issues, tried to protect their privacy and reported some kind of harm because of privacy problems. They are more likely to have limited the amount of personal information available about them online, changed privacy settings, deleted unwanted comments on social media, removed their name from photos in which they were tagged, and taken steps to mask their identities while online. It is also true that younger adults are more likely to have shared personal information online.

9 A majority of the U.S. public believes changes in law could make a difference in protecting privacy - especially when it comes to policies on retention of their data. In the midst of all this uncertainty and angst about privacy, Americans are generally in favor of additional legal protections against abuses of their data. Some 68% of internet users believe current laws are not good enough in protecting people's privacy online; and 64% believe the government should do more to regulate advertisers. Most expect at least some limits on retention policies by data collections. And a majority (64%) support more regulation of advertisers and the way they handle personal information. When asked about the data the government collects as part of anti-terrorism efforts, 65% of Americans say there are not adequate limits on "what telephone and internet data the government can collect."

10Many technology experts predict that few individuals will have the energy or resources to protect themselves from "dataveillance" in the coming years and that privacy protection will likely become a luxury good. Another prediction from 2,511 experts we canvassed was that the prospect of achieving bygone notions of privacy will become more remote as the Internet of Things takes hold and people's homes, workplaces and the objects around them will "tattle" on them. A more hopeful theme about privacy's future was sounded by experts who argued that new technology tools would become available that would give consumers power to negotiate on equal footing with corporations about information sharing and also allow them to work around governments trying to collect data.
Note: This is an update of a post originally published Jan. 20, 2016.

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After the June 2013 leaks by government contractor Edward Snowden about National Security Agency surveillance of Americans' online and phone communications, Pew Research Center began an in-depth exploration of people's views and behaviors related to privacy.

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en juridisk akademisk vurdering af udfoldelse af privatlivets fred som beskrevet i forfatningen og ved domstolene

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The citizens of the United States expect to enjoy their privacy. Indeed, few rights are as commonly taken for granted as that of privacy in this highly individualistic society. Yet the recognition of a constitutional right to privacy is fairly recent. Only since the late twentieth century has it been explicitly recognized, protected, and ultimately expanded. This may seem ironic in light of the many freedoms guaranteed by the Bill of Rights, but the Constitution makes no mention of privacy. In fact, the right had to be identified by the U.S. Supreme Court in a series of controversial, groundbreaking decisions. Its existence is due to the continual interpretation of the law, which in turn reflects sweeping changes in modern life. Today, federal and state privacy laws protect individuals from the intrusion of government, business, and other citizens.

Until the late nineteenth century, few people spoke of privacy rights. No court or law had expressly mentioned the idea. A new view began to emerge with the publication of "The Right to Privacy," a Harvard Law Review article written in 1890 by the scholars Samuel D. Warren and Louis D. Brandeis. They argued that privacy should exist as a common law right, particularly to protect the average person from public humiliation in newspapers. One of history's great champions of civil liberties, Brandeis became a Supreme Court justice, and later wrote a famous dissenting opinion that placed privacy at the very heart of the Constitution. "The makers of our Constitution...sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations," he stated in Olmstead v. United States (1928). "They conferred as against the Government, the right to be let alone -- the most comprehensive of the rights of man and the right most valued by civilized men."

Almost four decades passed before this idea took hold. The period between the 1930s and 1960s showed a relentless official disregard for privacy, as wartime and Cold War passions led the government on crusades that involved spying on unpopular groups and hauling witnesses before congressional panels. During the 1950s, the refusal to answer questions of the House Committee on Un-American Activities (HUAC), for instance, often resulted in prosecution for contempt of Congress. In Watkins v. United States (1957), an important early step in limiting government intrusion into privacy, the Supreme Court overturned the conviction of a man who had refused to answer some questions about his past political views and associations. Congress, it held, has no general authority to expose the private affairs of individuals without justification, but instead must respect the freedoms of speech, press, religion, political belief, and association.

During the post-war years, government cared deeply about what people did in their bedrooms. States tightly restricted intimate personal choices with laws governing sexual practices, birth control, and abortion. Even as social values and mores began changing in the midst of the sexual revolution, legal progress toward privacy rights was slow. Echoes of Brandeis' call for privacy could be heard occasionally, as in Justice William O. Douglas' dissent in Public Utilities Commission v. Pollak (1952), opining, "The right to be let alone is indeed the beginning of all freedoms." And in Poe v. Ullman (1961), Justice John Marshall Harlan II dissented from a decision allowing a state to ban contraceptive sales, calling the law "an intolerable invasion of privacy."

By 1965, privacy's time had come. In Griswold v. Connecticut (1965), the Supreme Court struck down a state law that forbade married couples from using contraceptives. Writing the majority opinion now, rather than a mere dissent, Justice Douglas acknowledged that the Constitution made no mention of privacy. But he located such a right in the combination of liberties guaranteed by the Bill of Rights. Together, he wrote, the First, Third, Fourth, Fifth and Fourteenth Amendments have penumbras --a term from astronomy meaning partial illumination around a shadow. These penumbras were "formed by emanations from those guarantees that help give them life and substance." Metaphorically, Douglas meant that the right to privacy could be inferred from the amendments even if they did not explicitly state it.

In a quick succession of cases, the scope of the new constitutional right became clear. It was even broader than the Griswold decision had suggested. Family planning issues again provided the focus. In Eisenstadt v. Baird (1972), the Supreme Court threw out a state law that prohibited selling contraceptives to unmarried persons. Intimate personal decisions, the opinion stressed, could not be dictated by the government. "If the right of privacy means anything," wrote the Court, "it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person." Within two years, the development of this idea produced the decision in Roe v. Wade (1973), establishing the right of a woman to abortion. While noting that the right to privacy is not absolute, the Roe decision found that it is "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

The privacy decisions ignited controversies that still burn today. Apart from moral objections to contraception and abortion, there has been ongoing legal debate over constitutional interpretation. The debate hinges upon whether the Constitution should be interpreted flexibly or strictly in light of what the framers intended. Liberal legal scholars and proponents of civil liberties hail the privacy decisions, seeing them as reflecting the robust ability of constitutional law to adapt to modern life. Conservative critics, who have often sneered at the privacy decisions, demand that interpretation closely follow the text of the Constitution. In one critical essay in 1986, Supreme Court nominee Robert H. Bork blasted the Court for dictating, "without guidance from the Constitution, which liberties or gratifications may be infringed by majorities and which may not." The debate is far from academic, as it informs the future course of the Court on issues such as abortion rights, often challenged in the 1980s and 1990s.

Although privacy rights grew out of decisions on family planning issues, the right to privacy in sexual matters is far from universal. Several states retain age-old laws that criminalize consensual sex between unmarried adults, though these are seldom enforced. However, states have long prosecuted gay men under sodomy statutes that ban anal and oral sex. Once commonplace, these laws remain on the books in 19 states. Between the 1960s and 1990s, many legislatures repealed them, and four courts ruled that their laws violated state constitutions. However, this trend was not followed by the Supreme Court in Bowers v. Hardwick (1986). In Bowers, a gay man challenged his conviction under a Georgia statute outlawing sodomy, which occurred after a policeman entered a private home and found him engaged in consensual sex with another man. Allowing the law to stand, the Court held that there was no constitutional right for homosexuals to engage in sodomy.

Another critical area for the privacy of gays and lesbians is military service. In the 1990s, the federal government addressed the military's long-standing refusal to allow them in its ranks. Instead of mandating that the armed services change their rules entirely, the Clinton administration attempted to safeguard sexual preference by keeping it private. Its so-called "Don't Ask, Don't Tell" policy, calling for servicepeople to hide their sexuality and for officials not to try to expose it, came under attack from all sides. Neither gays and lesbians nor the military considered the policy workable.

The ownership of pornography has enjoyed more constitutional protection than sex itself. Legal battles over pornography, which depicts sexual acts, have stretched across U.S. history. Generally, pornography is protected under the First Amendment, although the sale and distribution of obscene materials can be prosecuted under a community standards test. Even so, individuals can possess obscene materials in their own home, a right recognized in Stanley v. Georgia (1969). In a ringing defense of free thought as a fundamental form of privacy, Stanley struck down a Georgia statute punishing the mere possession of obscenity. Government, the Court determined, "has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch." There are limits, however, involving privacy and pornography. The right outlined in Stanley does not translate into the right to receive, transport or distribute obscene materials in interstate commerce. Nor does it extend at all to child pornography, which has no constitutional protection.

In criminal law, the Fourth Amendment protects citizens against violations of their privacy by the police and prosecutors. Its ban on "unreasonable searches and seizures" has roots in the experience of colonial America prior to the Revolution, when British authorities were wont to suddenly break down the door in making arrests. In the twentieth century, the amendment has restricted how and when the police may stop, arrest, search, or take the property of an individual or business, thus, in theory, preventing arbitrary actions by the government. Police generally need a search warrant, issued by a court, before they can enter a private residence. To deter police heavy-handedness, violations of the Fourth Amendment can result in evidence being thrown out of court under the so-called "exclusionary rule," a safeguard that has applied to the states since Mapp v. Ohio (1961). The rule is extremely controversial, as it often leads to criminal cases being dismissed. Limits on the rule appeared in United States v. Leon (1984), which allows for a good faith exception when police make reasonable mistakes. Indeed, in the 1980s, the trend of Supreme Court decisions was to constrain Fourth Amendment protections by allowing greater latitude to police to conduct searches without warrants, whether on buses, through aerial surveillance, or in people's garbage.

Testimony in court comes under a specific protection of privacy. The Fifth Amendment allows criminal defendants to keep secret any information that might help lead to their conviction, known as the right to avoid self-incrimination. Thus a person is protected from having to testify against him or herself and the government must, as the Court held in Tehan v. United States (1966), "shoulder the load." Testimony against others is mandatory once a witness is called, but certain notable exceptions exist that safeguard privacy. Known as privileges, these include confidential communications between a husband and wife, an attorney and a client, a doctor and a patient, and a priest and penitent.

Civil litigation often involves privacy claims. Under the common law of torts, five discrete rights of privacy are recognized. Individuals may sue when their solitude is intruded upon in an offensive manner, when private information is made public in an objectionable fashion, when information is made public that places them in a false light, when their name or likeness is appropriated without consent, and, in the case of businesses, when competitors steal trade secrets. Many of these claims arise in lawsuits against the media. Notably, public officials and celebrities have less likelihood than private citizens of recovering in such cases, unless they can prove that information was published with knowledge of its falsity or in reckless disregard for its truth, as in the case Time, Inc. v. Hill (1967). And in litigation between private citizens, not all invasions of privacy hold up in court, but generally only those in which the intrusion is highly unreasonable and offensive.

State and federal legislation protecting privacy has existed since the late 1960s. Numerous laws forbid snooping and dissemination of personal information. Electronic surveillance by individuals and the police is regulated by the federal Omnibus Crime Control and Safe Streets Act of 1968, which requires police to obtain search warrants before conducting wiretapping and forbids private parties from using information obtained without another person's consent. The Privacy Protection Act of 1974 and the Freedom of Information Act limit the government to using fair practices in the collection, use, and disclosure of data about its citizens, while also allowing people to see what the government knows about them, correct mistakes, and add details. A similar right is found in the Family Educational Rights and Privacy Act of 1974, which permits parents access to their children's scholastic records. Under the Fair Credit Reporting Act of 1970, credit records can only be given out to third parties for legitimate business purposes, and credit bureaus must maintain accurate reports, allow consumers to challenge inaccuracies, and make no use of their records for marketing.

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The citizens of the United States expect to enjoy their privacy. Indeed, few rights are as commonly taken for granted as that of privacy in this highly individualistic society. Yet the recognition of a constitutional right to privacy is fairly recent. Only since the late twentieth century has it been explicitly recognized, protected, and ultimately expanded.

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ABSTRACT
The nature and depth of internet surveillance has been revealed to be very different from what had previously been publically acknowledged or politically debated. There are critical ways in which the current debate is miscast, misleading and confused. Privacy is portrayed as an individual right, in opposition to a collective need for security. Data gathering and surveillance are portrayed as having an impact only on this individual right to privacy, rather than on a broad spectrum of rights, including freedom of expression, of assembly and association, the prohibition of discrimination and more. The gathering and surveillance of 'content' is intrinsically more intrusive than that of 'communications' data or 'metadata'. The impact of data gathering and surveillance is often portrayed as happening only at when data are examined by humans rather than when gathered, or when examined algorithmically. Commercial and governmental data gathering and surveillance are treated as separate and different, rather than intrinsically and inextricably linked. This miscasting has critical implications. When the debate is recast taking into account these misunderstandings, the bar for the justification of surveillance is raised and a new balance needs to be found, in political debate, in law, and in decision-making on the ground.

The significance of communications surveillance was highlighted dramatically by the revelations of Edward Snowden - revelations that have triggered significant political and popular debate. The level of that debate, how it matches with the reality of surveillance in practice and the implications of that surveillance, can be characterised by misunderstanding and oversimplification. If appropriate decisions are to be made about the practice of surveillance, and the laws that govern surveillance, then the debate needs to be recast to give a better understanding of the nature and impact of surveillance.

There are critical questions upon which there is a mismatch between the views of those advocating and supporting the new forms of surveillance and those critical of it.

1. What constitutes 'surveillance' and when does it occur? When data are gathered - when data are algorithmically analysed, or when it is viewed or analysed by humans?

2. Is there a 'balance' to be found between competing rights of privacy and security - or is the setting up of such a balance misleading? Does surveillance have an impact beyond what is traditionally seen as 'privacy' - and can surveillance itself have a negative effect on security?

There are further crucial issues upon which there are disagreements; perhaps most importantly the question of whether surveillance by the state can be considered separately from surveillance by commercial organisations, or whether the two need to be considered together.

The answers to these questions are not as clear as they might immediately appear - they need careful unpicking. To help to achieve more clarity, this article looks at internet surveillance from a human rights perspective, using the framework of the European Convention of Human Rights ('ECHR') - a framework appropriate for analysis of UK surveillance as the convention rights are incorporated into UK law through the Human Rights Act 1998, and one of the most comprehensive and accepted formulations of human rights worldwide. It examines the impact that surveillance has upon the ways that people use communications and the internet, and hence upon how people live, and suggests that this impact has the potential to be far more significant than is commonly presented. Further, it suggests that the idea of a 'balance' between 'privacy' and 'security' is a misleading idea in itself: firstly because surveillance impacts upon far more than traditional privacy, and secondly because neither the concept of privacy, nor that of security, is as simple as it is often portrayed. Measures to protect privacy may improve security - and measures that purport to improve security may in other ways actually reduce that security.

This article is not intended as an exhaustive or detailed legal analysis. Indeed, legal analysis can only ever be part of the debate, particularly as it is questionable whether the law is ever really able to keep pace with either the technology or the way that people use it. Rather, the article is intended to raise questions and open up debate. The examples used are not restricted to one state or jurisdiction; much of the best analysis and research, for example, comes from the US while the use by UK authorities of a 'neither confirm nor deny' policy, along with the natural secrecy associated with intelligence work, makes garnering information from the UK harder than it might be. The internet, moreover, is by its nature international - surveillance needs to be considered in that context, and the debate over it needs to be one that is not confined to individual states and their particular circumstances and particular laws. It is not just law but principles that are at stake, and the policies and practices of global corporations as well as government authorities.

1. A miscast debate

Communications surveillance had become a significant topic of political conversation, particularly in the UK, even before Edward Snowden made his leaks. The Communications Data Bill in , dubbed by campaigners the 'snooper's charter', failed to make its way through Parliament after much debate and a highly critical analysis by the Joint Parliamentary Committee appointed to scrutinise it.

Since Snowden's revelations six months later, though there has been considerable debate on the subject, it has to a great extent been limited and miscast. When Sir Malcolm Rifkind, Chair of the Intelligence and Security Committee (ISC), announced the first 'public' hearing of that committee, he said, 'There is a balance to be found between our individual right to privacy and our collective right to security.'

This comment was repeated directly in the ISC's call for evidence in its inquiry into the intelligence services' interception of communications in December 2013 (ISC ) and remains a common argument. Andy Burnham MP, the Shadow Home Secretary, used it as the basis of his speech in the second reading of the Investigatory Powers Bill in March 2016. It is not restricted to the UK. The 2016 Intelligence and Security Review in New Zealand, for example, repeated it in very similar terms: 'The debate about how best to balance the need for security and the privacy of individuals will continue for as long as both are seen as essential to a free society' (Cullen and Reddy ).

It is not just a theoretical discussion; in relation to the Investigatory Powers Bill, the bulk powers Codes of Practice explicitly discuss interference only with 'an individual's rights under Article 8' of the ECHR, not other rights, individual or collective. These ideas reflect a relatively common misunderstanding of the issues at the heart of the debate over surveillance. Surveillance impacts not just upon individual privacy, but upon a wide range of human rights, from freedom of expression and freedom of association and assembly, to protection from discrimination - some because privacy acts as a gateway or guardian to those rights, and some independently of what is generally thought of as privacy. The impact is not just on individuals but on communities and other groups - and casting the debate as one of individual vs. collective rights is misleading, as it inappropriately downplays the significance of surveillance. The nature of the impact of surveillance needs to be understood better if a more appropriate balance is to be found between people's rights and liberties and the duties of states both to provide security and to protect freedoms for their citizens.

That such a rebalancing exercise is necessary has been emphasised by the ruling of the Court of Justice of the European Union ('CJEU') in the Digital Rights Ireland case in April 2014, that the Data Retention Directive (Directive 2006/24/EC) was invalid. The Data Retention Directive effectively required communications providers to retain specified communications data (as defined within the directive) for a period of between 6 and 24 months, as determined by the member state, and to make that data available to 'competent national authorities'. As the CJEU put it, referring to the rights set out in Articles 7 and 8 of the Charter (rights to respect for private and family life and to protection of personal data):

Article 7 of the Charter is the equivalent of Article 8 of the ECHR, whilst Article 8 of the Charter confirms that protection of personal data is itself a fundamental right - a point which is critical to understanding the significance of the gathering and retention of such personal data.

Effectively, the CJEU ruled that the interference with these fundamental rights was disproportionate, noting for example that it 'applies even to persons for whom there is no evidence capable of suggesting that their conduct might have a link, even an indirect or remote one, with serious crime' and that it 'fails to lay down any objective criterion by which to determine the limits of the access of the competent national authorities to the data'. In essence, the CJEU could be viewed as asking for the balancing exercise to be made explicit and appropriate. The full impact of the Digital Rights Ireland case is still not clear - particularly with a legal challenge to the UK's replacement of their implementation of the Data Retention Directive currently being reviewed by the CJEU. The success or failure of that challenge, however, will not alter the CJEU's analysis that the retention of data itself engages these fundamental rights.

2. 'New' forms of surveillance

The various leaks by Edward Snowden revealed some of what can be described as 'new' forms of surveillance, as have recent legislative measures in the UK, from 2012's failed Draft Communications Data Bill to the Investigatory Powers Bill proceeding through parliament in 2016. Much of this had been previously a matter primarily of speculation - that speculation driven in the UK, to an extent, by the 'neither confirm nor deny' policy of the intelligence and security agencies. Now, however, more is being revealed and there do appear to be some identifiable characteristics that differentiate these forms of surveillance from the more 'traditional' techniques such as analogue phone-tapping, photography, listening devices and so forth:

1. The focus of surveillance activities is on 'metadata' or 'communications data' as much as on 'content' - though these terms are far from clear or separate. This focus appears not to be out of a desire to protect privacy, though the need to comply with what might loosely be described as 'traditional' laws protecting the privacy of communications appears to play a role, but because the metadata/communications data can be just as revealing, though in different ways, and is more easily analysed and processed.

2. They operate on a 'gather in bulk, access in detail' basis. The question of whether this constitutes 'mass surveillance' is one of the key parts of the debate, but may as discussed below, be a largely semantic argument. What is clear is that surveillance law and practice as it currently exists, and is being legally proposed, involves gathering of massive amounts of data. In the Investigatory Powers Bill, for example, there are a whole series of 'bulk powers' - bulk interception, bulk acquisition of communications data, bulk equipment interference, 'bulk personal datasets' ('BPDs') - where there are no limits on how 'bulky' the bulk might be. The Investigatory Powers Bill also allows for 'thematic warrants'. As the Home Office's Operational Case for Bulk Powers set out: '[i]t is entirely possible for a targeted "thematic" [equipment interference] warrant to cover a large geographic area or involve the collection of a large volume of data' (Home Office ). The Investigatory Powers Bill considers this to be 'targeted' rather than bulk, but the volume of data makes that argument a largely semantic one. Some of these powers would have been considered 'surveillance' in the past - interception, for example - but some would not, such as the acquisition of BPDs directly from commercial operators.

3. They work with commercial data gatherers. Through the PRISM programme, for example, the NSA claimed to have 'direct access' to the servers of nine of the big commercial operators: Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube and Apple. How this takes place and the extent of the cooperation and knowledge of the commercial operators remains unclear. What is clear, however, is that the newer forms of surveillance access and use commercially gathered data and commercial surveillance - and that they benefit from the profiling and analysis methods of commercial operators. The 'bulk powers' in the Investigatory Powers Bill include acquisition of communications data directly from commercial data gatherers, whilst the BPDs in the same bill would often be acquired directly from these commercial data gatherers.

These issues are not of themselves new - commercial operators have cooperated with government surveillance since the earliest days of telecommunications for example - it is the combination of these factors that creates the 'new' kind of surveillance.

2.1. Surveillance in a new internet

What also makes this kind of surveillance new is the way that we use the internet. In particular the way that the internet is used for almost every aspect of our lives. It is not just a means of communication, it is a way that we manage our social lives, apply for jobs, seek information about our health, do our shopping, our banking, seek and find romance, choose and consume entertainment and much more. The implications of this are considerable: even to the extent that although surveillance techniques are not all new, their relationship to people's lives and their potential impact is new.

The growth of social networking sites and the development of profiling and behavioural tracking systems and their equivalents change the scope of the information available: it is not just information that we impart deliberately that is available, but information derived from analysis of that information and from our behaviour can also become available. In parallel with this, technological developments have changed the nature of the data that can be obtained by surveillance - for example the increased use of smartphones and related technologies provides new dimensions of data such as geolocation data and biometric data including facial recognition and fingerprints, and allows further levels of aggregation and analysis.

The nature of the technology also means that surveillance that would have been overwhelmingly expensive, as well as immensely challenging on a practical level, has now become relatively simple and inexpensive, and hence, for governments, attractive. Programmes that work along these lines are widespread. In France, what was described by Le Monde in 2013 as 'le Big Brother français' was passed in 2015 - an intelligence-gathering law which includes provisions for mass retention of communications metadata - whilst in Australia, the Telecommunications (Interception and Access) Amendment (Data Retention) Act of 2015 works upon essentially the same basis. The controversial FRA:Lagen in Sweden includes similar provisions (Klamberg ) and in Belgium a 'Royal Degree' in September 2013 appears to provide equally extensive powers. India's 'Central Monitoring System' - perhaps even more intrusive - is reported to be rolling out in 2016. The extent to which more seemingly repressive regimes utilise these kinds of technologies is largely a subject of conjecture; it is a reasonable assumption that it is used extensively.

2.2. Metadata vs. content

2.3. What is 'Surveillance' and when does it occur?

In her evidence to the Joint Parliamentary Committee on the Draft Investigatory Powers Bill in January 2016, the then Home Secretary Theresa May stated categorically that the UK does not engage in mass surveillance (JPCIPB ). The Investigatory Powers Bill uses the word 'bulk' rather than 'mass' - and quite how 'bulky' these 'bulk' powers really are remains less than clear, despite the issuance of detailed codes of practice. A similarly semantic argument was the key element in the CJEU's striking down of the 'Safe Harbour' agreement over data sharing between the European Union and the United States in the Schrems case. Advocate General Bot said that 'interference with fundamental rights is contrary to the principle of proportionality, in particular because the surveillance carried out by the United States intelligence services is mass, indiscriminate surveillance' (CJEU ). The US response was immediate: its Mission to the European Union stated that '[t]he United States does not and has not engaged in indiscriminate surveillance of anyone, including ordinary European citizens' (US Mission ).

David Lyon, in Surveillance Studies: An Overview defined surveillance as 'the focused, systematic and routine attention to personal details for purposes of influence, management, protection or direction' (Lyon ), a description which captures the essence of surveillance but still leaves significant questions to be answered. What is 'attention' and when can it be 'focussed' - and by whom or what? In the context of data surveillance there are, very broadly speaking, three stages: the gathering or collecting of data, the automated analysis of data (including algorithmic filtering), and then the 'human' examination of the results of that analysis of filtering.

This is where the difference in views as to whether the UK and US engage in 'mass surveillance' lies: the CJEU and privacy advocates could argue that the 'surveillance' happens at the first stage - when data are gathered or collected - while the UK and US governments could argue that it happens at the third stage - when human beings are involved.

In Lyon's terms, the answer may lie more accurately in the complex, multifaceted second stage of the process, where automated algorithmic analysis is applied. What an algorithm does could be described as 'focused, systematic and routine attention' to data. In the future this is likely to be more significant; in commercial terms surveillance by algorithm is already more important than surveillance by human eyes, ears and minds, as the business models of Google, Facebook and others demonstrate. Algorithmic analysis, however, depends on the prior gathering of data on a large scale - something, therefore, in which governments and businesses have a shared interest.

In the end, however, the question of whether data gathering or algorithmic analysis constitutes 'surveillance' is largely a semantic point. Many of the key risks occur when data are gathered - the existence of data creates the risk. As a consequence it is at the data-gathering phase that the first privacy invasion occurs, regardless of whether that phase is described as surveillance or not. This has been reflected consistently in rulings at both the CJEU and of the ECtHR.

2.4. Overt and covert surveillance

Overt surveillance brings the Panopticon effect into play. The premise of Bentham's Panopticon was not that prisoners would be observed all the time, but that they would be aware that they might be observed at any time, and would curb their behaviour accordingly. That, in effect, is exactly what the kind of internet surveillance systems being discussed here would do. The idea that the authorities would be able to look at anything, either through access to archives or access to real time feeds, precisely mirrors Bentham's envisaged observation capabilities of prison guards. From Bentham's perspective, the Panopticon was an appropriate way to deal with potentially violent offenders. The problem with the internet surveillance Panopticon is that it treats all people as potentially violent offenders.

Covert surveillance has risks that are qualitatively different. In The Dangers of Surveillance Richards outlines what is perhaps the most significant aspect: the way that surveillance, and covert surveillance in particular, gives the watchers power over those who they watch.

'It might sound trite to say that "information is power," but the power of personal information lies at the heart of surveillance. The power effects of surveillance illustrate three additional dangers of surveillance: blackmail, discrimination, and persuasion' (Richards ).

These three dangers are representative of one of the key aspects of surveillance: it provides tools to enable influence and control. They help explain why authoritarian regimes have used data gathering as one of the key tools to create conformity and reduce the risk of dissent. It is an effect recognised both in the past and present, and with implications for the future. Emily Taylor notes that, 'The human rights impact of data retention on the ability to create profiles, or to confirm a future suspicion, has rightly been highlighted as a human rights risk by commentators as diverse as Cardinal Richelieu and Evgeny Morozov' (Taylor , referring to Morozov ).

This 'power effect' applies to overt as well as covert surveillance, though not in exactly the same way; having information gives power, but having information that the subject does not know that you have gives a different kind of power. This applies particularly to the discrimination and persuasion aspect: the subject might not know either that they are being discriminated against or persuaded or that it is possible for that to happen.

2.5. Surveillance as a harm in itself

One of the conclusions of Richards' analysis is to recognise that surveillance is harmful in itself. This is a fundamental issue, hitting at the ideas of liberty that have been discussed for many centuries. This is historian Quentin Skinner:

Skinner's argument is about the existence of the system - and hence about the data gathering rather than the human examination. That is the logic behind the recognition by the ECtHR that data gathering in itself engages Article 8 of the ECHR directly. This can be traced back to Klass v. Germany in 1978, where it was ruled that: The conclusion drawn by the court in S and Marper v. the United Kingdom in 2009, that 'the mere retention and storing of personal data by public authorities, however obtained, are to be regarded as having direct impact on the private-life interest of an individual concerned, irrespective of whether subsequent use is made of the data' is a logical extension of this analysis. It is the development of systems and laws to allow the gathering of that data that produces the menace of surveillance, not that allows the examination or use of the data gathered. It is the gathering stage, therefore which should start the rights-balancing exercise. This understanding underlies subsequent rulings of both the ECtHR and the CJEU. In Szabo v Hungary in 2016, the ECtHR noted that this point was becoming increasingly significant: Not only are the risks and harms already in play by the gathering stage, but the key possibilities of data vulnerability and function creep come to the fore. Once the data have been gathered or the surveillance system put in place, both data and systems are vulnerable to 'intentional' or accidental misuse or loss by authorities or vulnerability to misuse by others.

Data gathered by surveillance is vulnerable in all the same ways that other data are vulnerable: vulnerable to misuse, to misappropriation, to hacking, to loss, to corruption and error, and to what is loosely described as 'function creep'. Security services and other authorities are not immune to that vulnerability - as the leaks through WikiLeaks, the revelations of Edward Snowden, the numerous data losses by the Ministry of Defence and others have demonstrated (Bernal , Chap. 7). The surveillance systems themselves are vulnerable: build a back door into a system and it is not only those who are intended to use it who can use it as a way to access that system. Install a 'black box' into an internet service provider's premises and that black box can itself be hacked and accessed.

2.6. Surveillance damaging security?

This also means that though the general argument made is that building surveillance systems and gathering data is to improve security - a term that is itself very hard to define - it can also both in practice damage security and increase risks. There are further arguments in that direction. Former NSA Technical Director William Binney noted in his evidence to the Joint Parliamentary Committee on the Investigatory Powers Bill that:

... over the last fifteen years, the bulk collection approach has cost lives, including lives in Britain, because it inundates analysts with too much data. It is 99 per cent useless, as attacks occur when intelligence and law enforcement lose focus on previously suspected terrorists and fail to find accomplices or others enabling fresh attacks. (JPCIPB )

This is Bruce Schneier in Data and Goliath in 2015:

Terrorist plots are different [from the kind of commercial fraud that data mining has worked well in detecting], mostly because whereas fraud is common, terrorist attacks are very rare. This means that even highly accurate terrorism prediction systems will be so flooded with false alarms that they will be useless.

... In the years after 9/11, the NSA passed to the FBI thousands of tips per month; every one of them turned out to be a false alarm. The cost was enormous, and ended up frustrating the FBI agents who were obliged to investigate all the tips. (Schneier )

Former Shadow Home Secretary, David Davis MP, made a similar point in the House of Commons debate on the Investigatory Powers Bill in March 2016: '[t]here are genuine concerns that the collect-it-all approach actually makes things worse'.

These views are contested - not least by GCHQ - but they do open the question as to whether the bulk data collection approach is straightforwardly positive for security from terrorism and similar dangers. That in turn adds doubt to the 'privacy vs. security' dichotomy, and the possibility that data gathering and surveillance could do harm to both privacy and security. There are further, more abstract arguments in the same area, with some backing from history: where excessive 'security' measures are brought in they can lower the level of trust and, as a consequence, lower levels of cooperation with authorities, which again could damage rather than help security. The idea that 'tightening' security actually improves security is one that should not be taken at face value.

3. The impact on human rights

Surveillance in its new form has human rights implications beyond the obvious-seeming intrusions into privacy of correspondence - one aspect of Article 8 (1) of the ECHR - into people's private lives themselves, and further, upon Articles 6, 9, 10, 11 and 14 of the ECHR. Privacy is not the only issue - partly because privacy underpins other rights (and in particular rights that are very much not individual, such as freedom of association and assembly) and partly because of the nature of the internet and how we now use it. To focus only on privacy can make the risks of surveillance seem less significant than they are and hence set the criteria upon which it is decided whether surveillance is appropriate or legitimate, too low.

3.1. Article 8: right to respect for private and family life

Great play has been made by politicians that the new surveillance does not include the 'content' of calls, just the metadata. As computer scientists and others have pointed out, this largely misses the point. As Professor Edward Felten put it in the context of telephony: Felten was writing about telephony metadata, but the data gathered by internet surveillance covers far more than that, and can be even more revealing. Internet surveillance can, without even considering content, provide more information about someone's communications, and in a far more accessible form, than conventional wiretapping even where that conventional wiretapping would have included contents.

Article 8 provides for protection for private and family life as well as for correspondence. On the surface, it might appear that 'communications data' relates to the 'correspondence' part of Article 8 - communications like telephone calls, emails, text messages and tweets fit into this category - but internet communications data have a broader impact upon the 'private life' aspect of the Article. Web-browsing data can be used to uncover far more intimate, important and personal information than is immediately obvious. It shows which websites are visited, which search terms are used, which links are followed, which files are downloaded - and also when, and how long sites are perused, using what kind of computer, phone or other device and so forth. When the other data that is being gathered through commercial and governmental internet surveillance - from traditional communications data like email, text messages and phone calls to music listened to on Smartphones, geolocation data, etc. - is added to this, aggregated and analysed, the potential becomes even greater.

This data can reveal habits, preferences and tastes - and can uncover, to a reasonable probability, religion, sexual preferences, political leanings and more. It can dig deep into personal lives. People use the internet to establish and support personal relationships, to find jobs, to bank, to shop, to gather the news, to decide where to go on holiday, to concerts, museums or football matches. Some use it for education and for religious observance - checking the times and dates of festivals or details of dietary rules. There are very few areas of peoples lives that remain untouched by the internet.

Furthermore, analytical methods through which more personal and private data can be derived from browsing habits have already been developed, and are continuing to be refined and extended, for example by the behavioural advertising industry. Significant amounts of money and effort are being spent in this direction - it is a key part of the business models of Google, Facebook and others. The profiling and predictive capabilities will develop further both in scope and in accuracy in the future.

3.2. Article 9: freedom of thought, conscience and religion

This kind of profiling can also bring Article 9 into play. It can be possible to determine (to a reasonable probability) individuals' religions, politics and philosophy, the languages they use and even their ethnic origins, and then use that information to monitor them both online and offline. It could potentially be used to limit or control the activities of people that fit within a particular religious outlook - and it can also be used to limit the related rights to freedom of association and assembly.

Although it could be seen as a stretch to suggest that such profiling might allow a profiler to know what someone is thinking, that, effectively, is its aim. Apple Google and Microsoft's 'digital assistants', Siri, Now and Cortana respectively, all aim to predict what you want to know. Indeed, it has been argued that Google and Facebook can know people better than they know themselves, as they are free from 'self-deception'. From the perspective of the profiler (and the commercial profiler in particular) precise accuracy may not be crucial; a reasonable probability may be all that is needed. From the perspective of those being profiled, the situation is very different - and problems may arise from both accurate and inaccurate profiling. A real 'dissident', for example, may be located and imprisoned by an accurate profile, while an 'innocent' may be unfairly punished by an inaccurate profile. Further, as discussed in more depth in Section 3.6 below, there is a growing potential for discrimination on the basis of these profiles.

3.3. Article 10: freedom of expression

Though the connection between freedom of expression and privacy may not be obvious - indeed, the two may appear at times to be in conflict - for freedom of expression to function properly there must be a degree of privacy. There are direct impacts on journalism - as US journalism professors noted in their 'Comment to the Review Group on Intelligence and Communications Technologies', including reducing the trust required for confidential discussions with sources, chilling effects not just in terms of the output of journalism but the correspondence and communications - the research - that is fundamental to that journalism.

After revelations involving the Metropolitan Police and Kent Police Service in 2014, the Interception of Communications Commissioner's Office (IOCCO) undertook an inquiry into the use of the Regulation of Investigatory Powers Act to identify journalistic sources. This inquiry revealed that in a three-year period '19 police forces reported undertaking 34 investigations which sought communications data in relation to suspected illicit relationships between public officials (sources) and journalists. The 34 investigations concerned relationships between 105 journalists and 242 sources' (IOCCO ). IOCCO noted that:

... even though the requirement to identify the source may appear, taking account of the requirements of Article 10, legitimate in order to investigate a serious crime or address matters relating to national security, the chilling effect or collateral impact is ever present.

IOCCO is not suggesting that this means that use of surveillance to identify journalistic sources is necessarily inappropriate, rather that the chilling effect needs to be part of the balancing exercise.

Privacy is not just important for journalists, but crucial for free expression in a wide range of other situations, from those dissenting against oppression, to those threatened by abusive spouses, to whistle-blowers and so forth. Without a reasonable expectation of privacy, many of these would simply choose not to speak out. Further, surveillance chills not only those imparting but those receiving information - both sides of the Article 11 rights. If someone knows that their web browsing is monitored, the Panopticon effect will make them less likely to visit sites they believe the authorities might deem subversive or inappropriate.

UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, set out the issue in his report to the Human Rights Council in April 2013:

States cannot ensure that individuals are able to freely seek and receive information or express themselves without respecting, protecting and promoting their right to privacy. Privacy and freedom of expression are interlinked and mutually dependent; and infringement upon one can be both the cause and consequence of an infringement upon the other. (La Rue )

La Rue was writing before the Snowden's revelations; the scale of the surveillance subsequently revealed makes his comments even more apt. There is growing empirical evidence to support the existence of this kind of a chill in practice. In , a report by PEN America, based on a detailed survey of writers in the light of the Snowden revelations, found amongst other things that 28% had 'curtailed or avoided social media activities' and another 12% had 'seriously' considered doing so, 24% had deliberately avoided certain topics in phone or email conversations. That survey data are reinforced by more recent academic analysis. In 2016 Jonathon Penney analysed traffic to privacy-sensitive Wikipedia articles and found statistically significant declines not only in the immediate aftermath of the Snowden revelations but in the long term. The chilling effect in terms of access to information is not just theoretical but empirically evidenced (Penney ). Further, Elizabeth Stoycheff's study of Facebook activity revealed that, ' ... knowing one's online activities are subject to government interception and believing these surveillance practices are necessary for national security play important roles in influencing conformist behavior' (Stoycheff ).

That influence, Stoycheff concludes, is in effect a chilling of speech, particularly of minority opinion. Again it is important to note that this does not necessarily mean that surveillance is inappropriate - indeed, for security purposes a chill may be both intentional and desirable, such as the chilling of extremist speech - but nonetheless it should be considered when looking at the balancing exercise. Moreover, this tendency to conformity is not something new: Timothy Garton Ash noted it was part of the effect (and possibly the purpose) of Stasi data gathering and surveillance:

More typical were the nice couple from whom the University had rented my room. Intelligent, well-educated, well-informed through watching Western television, they nonetheless devoted virtually all their energies to their private lives, and particularly to extending, decorating and maintaining their cottage on a small lake some half-an-hour's drive from Berlin. (Garton Ash )

3.4. Article 6: the right to a fair trial

Surveillance can interfere with legal processes in a number of ways. In a similar fashion to its interference with journalists' communications with their sources, surveillance can interfere with lawyers' correspondence with their clients. As the Bar Council pointed out in their press release in relation to the Investigatory Powers Bill in March 2016:

The fact that a person suspects that communications with his or her legal adviser may find their way to the opposing party, or may be subject to surveillance by intelligence agencies, means that they may then be inclined to tell only part of the truth. This has a 'chilling effect' on free and frank lawyer-client communication. (Bar Council )

There is a potential for further impact: the power effect of covert surveillance applies directly in relation to both the police and prosecuting authorities. Access to information, and the ability to utilise that information, can directly and potentially prejudicially influence justice.

3.5. Article 11: freedom of assembly and association

The internet offers previously unimaginable tools for groups - and for assembly and association of all kinds. Online communities have developed, using services like social networking, instant messaging and message boards, and 'real world' groups have used the same tools to facilitate their 'real world' meetings and communications. In this way, the internet can often be seen as a force for 'good', for 'democracy'. Many commentators suggested that the internet played a key role in the Arab Spring - and though its role may well have been exaggerated, the internet was certainly used by many of those organising the resistance in Tunisia and Egypt in particular.

It is not just in extreme situations such as a political uprising that internet surveillance is relevant to association and assembly. Authorities in the UK, for example, have argued that it would be right to monitor social media during a riot - and with some justification - but what about a peaceful protest? Then what about those organising a protest, before the event? How about a trade union? It is easy to make a decision on an extreme case - but there are grey areas and the temptation for authorities to use tools once they are in place can be hard to resist. In June 2013, for example, the UK government monitored social media activities concerning the controversial cull of badgers. With headlines such as that from the BBC that read, 'Whitehall chiefs scan Twitter to head off badger protests' it is easy to see how this kind of surveillance can interfere with Article 11 rights. When technologies like geolocation data are taken into account, allowing authorities to locate physically those wishing to assemble, that potential becomes even more significant and relevant. In 2013 Electronic Frontier Foundation filed with a federal judge 22 separate examples from advocacy groups of how mass surveillance of telecoms data has 'impeded the groups' work, discouraged their members and reduced the numbers of people seeking their help via hotlines' (EFF ).

Surveillance need not invade privacy to infringe on Articles 10 and 11. Monitoring Twitter, as for the badger cull, does not directly invade privacy, as in general, tweets are public rather than private, but performing surveillance of those public tweets in order to 'head off' protests could potentially interfere with the expression, association and assembly rights involved in public protest. This hints at a more significant point: the power effect of gathering and holding data does not, primarily, impact upon privacy but autonomy. Whether data gathered are private is not the significant part; it is how the data may be used that matters.

3.6. Article 14: prohibition of discrimination

Not only can surveillance and profiling enable discrimination - it can potentially automate it. It may be possible to determine almost any kind of detail about a person online through profiling: their age, religion, nationality, ethnic origin and more. Decisions and options available to a person may then be automatically controlled on the basis of that profiling - and the person involved may never even know what is happening. A website could assess the profile of the person visiting and change the options displayed dependent on any aspect of that profile - and this kind of 'personalisation' is being most actively developed by some key players on the internet. In March 2016, for example, it was revealed that Facebook was showing different trailers for the same film based on the race to which it assessed the user belonged; not self-declared race, but assessed algorithmically using a system Facebook calls 'affinity groups'.

In a similar way, automated processes and filters could pick out people whose profile suggests authority might want to examine them more closely - by religion, political views, union membership and so forth - engaging Article 8 in a discriminatory way. Similarly, people could be prevented from accessing information or even commenting on particular internet forums based on their profiles, impacting upon their Article 10 rights in a discriminatory way. The same is possible for Article 11 rights to assemble and associate - and all without direct human involvement.

Two 2014 reports following parallel reviews of 'big data practices' for the White House raised discrimination as an issue. John Podesta, whose task force put together one of the reports, Seizing Opportunities, Preserving Values (Podesta ), told Associated Press that he had 'newfound concern' over how big data 'could be used to target consumers and lead to discriminatory practices'. Concern over the potentially discriminatory effects of 'big data' practices is a key finding of the report, and addressing them one of its six recommendations.

Seizing Opportunities, Preserving Values and its parallel report, 'Big Data and Privacy: A Technological Perspective' (PCAST ), detail a number of such possibilities, including the suggestion that differential pricing is likely to become more prevalent and less transparent. That such opportunities arise from commercial practices means similar practices become equally possible for government agencies. As Seizing Opportunities, Preserving Values notes:

Powerful private-sector profiling and data-mining technologies are not only used for commercial purposes. State, local and federal agencies purchase access to many kinds of private databases for legitimate public uses, from land management to administering benefits     ... some legal scholars and privacy advocates have already raised concerns about the use of commercial data service products by the government, including law enforcement and intelligence services.

It would be naïve to suggest that government agencies would only use data mining, profiling and related processes for transparent and clearly legitimate purposes - and not in more opaque circumstances and for less obviously legitimate purposes. One of the most notable features of the programmes revealed has been their lack of transparency; even people who are experts in the field seemed to have been genuinely surprised by their existence.

3.7. Necessary in a democratic society?

The key ECHR Articles referred to above are subject to qualifications. This is Article 8 (2):

There are similar caveats in articles 6, 9, 10 and 11. The reference to data gathering and surveillance being 'necessary in a democratic society' is the crux of the issue. In what way and to what extent, can they be considered 'necessary' in a democratic society?

It is becoming insufficient for the authorities to say, 'Trust us' when this level of interference with human rights is possible. Indeed, the prime motivation for the establishment of the various human rights treaties and conventions was precisely because authorities had demonstrated that they could not be trusted, and that they needed to be able to be held accountable. As David Anderson QC, the Independent Reviewer of Terrorism Legislation, put it, 'the road to a better system must be paved with trust' (Anderson ).

A key difference between a 'democratic society' and an authoritarian society - or even what might be labelled a 'police state' - is related to assumptions and defaults. In a police state the assumption is one of suspicion and distrust. People are assumed to be untrustworthy and generalised and universal surveillance makes sense; the legal, technical and bureaucratic systems are built with that universal surveillance in mind. The police states with which most people are familiar demonstrate this graphically: former communist countries, such as East Germany and Romania, relied on the most extensive secret police systems possible at the time: the Stasi and Securitate. They gathered data on a massive scale, using whatever methods were available at the time. As Vaizey put it, ' ... the Stasi had observed and photographed people's movements, secretly searched their homes, listened in to their telephone conversations, and even collected smell samples in jars, the idea being that trained sniffer dogs could tell where a person had been' (Vaizey ).

If it is understood that the gathering of data has an impact on a broad range of the rights of citizens, then the consequence is direct: gathering data on citizens as a matter of course, regardless of guilt or innocence, fits much more closely with the methods of the Stasi than it does with a classically democratic society. Gathering data on a massive scale - whether it is to be considered to amount to surveillance or not - cannot therefore be said to be 'necessary in a democratic society' without cause.

4. Recasting the debate

Arguments over surveillance will remain critical for the foreseeable future. There is no prospect either of mass internet surveillance being accepted by all, or of being abandoned by the authorities in any modern state. That makes the debate over how that surveillance should happen, what limits should be placed upon it, how it should be overseen and the legislation under which it operates, a crucial one - and means that the terms under which the debate takes place need to be appropriate.

First of all, the debate over what is or is not surveillance needs to be put to one side. It is largely a semantic argument once it is understood that the gathering of data itself has an impact. The argument that controls only need applying at the stage where 'human eyes' are involved is no longer tenable.

Secondly, that this impact is not just on privacy but on a broad range of rights - and indeed on autonomy and freedom in almost every aspect of our lives.

Thirdly, these are not just 'individual' rights, but rights that relate to our functioning as a community, such as freedom of association and assembly, as well as freedom of expression.

Fourthly, the idea that data-gathering and surveillance activities are necessarily positive for security is challengeable.

Fifthly, metadata or communications data is not less intrusive than 'content', but differently intrusive. The legal approach to surveillance and data gathering should not assume that collection or examination of metadata requires a lower level of scrutiny or accountability.

Sixthly, data gathering and surveillance involves both commercial and governmental organisations, and to consider them separately is to misunderstand the nature of both. The government uses data gathered by commerce, methods developed by commerce and piggyback on systems used by commerce.

The result of all this is that the balancing exercise required to determine whether data gathering and surveillance is justified needs to be recalibrated: the benefits of that surveillance need to be much greater than if they were only impacting upon individual privacy. Perhaps most importantly this means that the gathering and holding - or requiring of others to hold - communications data needs to be taken more seriously. To put the primary controls in place only at the accessing stage - and to consider the balancing exercise only at that stage - is to misunderstand the risks associated with the gathering and holding of this data. As the UN Special Rapporteur on the right to privacy put it, when assessing the Investigatory Powers Bill: 'It would appear that the serious and possibly unintended consequences of legitimising bulk interception and bulk hacking are not being fully appreciated by the UK Government' (Cannataci ).

Statements such as Theresa May's that 'the UK does not engage in mass surveillance' though semantically arguable, are in effect deeply unhelpful. A more accurate statement would be that

the UK engages in bulk data gathering that interferes not only with privacy but with freedom of expression, association and assembly, the right to a free trial and the prohibition of discrimination, and which puts people at a wide variety of unacknowledged and unquantified risks.

Whether the benefits from this bulk data gathering are sufficient to outweigh this interference with rights and generation of risks can only be assessed if the interference with rights and level of risk is appropriately acknowledged.

Finding a more appropriate balance does not just matter at the level of lawmaking. Decisions about surveillance and data-gathering activities are made at many levels, including the practical and operational level, based on the understanding that the authorising person has of the impact of those activities. Whilst that understanding underestimates the impact of the data gathering or surveillance, those decisions may be misjudged, again at every level, from the most strategic policy level to the most practical and operational.

All the factors discussed in this article are increasing in importance and in impact. As technology develops, as algorithms improve, as the volume and nature of the data increases so do all these pressures, and the current miscasting becomes more significant. Add into the picture developments such as the Internet of Things and this accelerates even faster. Laws and policies based on the current understanding and debate will become even less relevant, even less manageable and even less effective than they are now. That, in the end, is not sustainable.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

2. Quoted by the BBC (17 October 2013).

3. Parliamentary Debates, Commons, 6th series, vol. 607 (825).

4. For example the Bulk Acquisition Draft Code of Practice 3.8, the Security and Intelligence Agencies' retention and use of bulk person datasets 4.11. https://www.gov.uk/government/publications/investigatory-powers-bill-codes-of-practice.

5. In Digital Rights Ireland and Seitlinger and Others, Joined Cases C-293/12 and C-594/12, Court of Justice of the European Union (8 April 2014).

6. Ibid. para 58.

7. Ibid. para 60.

8. Referred to the CJEU by the Court of Appeal in the Secretary of State for the Home Office v. Davis, Watson and others (2015). EWCA Civ 1185.

9. The version of the Investigatory Powers Bill referred to in this article is that passed by the House of Commons in its second reading in March 2016.

11. The 'Security and Intelligence Agencies' Retention and Use of Bulk Personal Datasets Draft Code of Practice' defines a BPD as follows:

a set of data comprises a BPD where it includes personal data relating to a number of individuals, and the nature of that set is such that the majority of individuals contained within it are not, and are unlikely to become, of interest to the Security and Intelligence Agencies in the exercise of their statutory functions. Typically these datasets are very large, and of a size which means they cannot be processed manually.

13. Loi n° 2015-912 du 24 juillet 2015 relative au renseignement. Online at http://www.assemblee-nationale.fr/14/dossiers/renseignement.asp.

14. Parliamentary Debates, Commons, 6th series, vol. 564 (42).

15. Malone v. The United Kingdom, Application no. 8691/79 (2 August 1984).

16. In Case C-362/14, Maximillian Schrems v Data Protection Commissioner (6 October 2015).

17. Investigatory Powers Bill, Part 4 (Internet Connection Records), Parts 6 (Bulk Powers) and Part 7 (Bulk Personal Data Sets).

18. Most recently in Digital Rights Ireland (n4) and Schrems (n9).

19. Most recently in Zakharov vs. Russia, Application no. 47143/06 (December 2015).

20. See Sections 3.3 and 3.7.

21. The epigram attributed to Richelieu 'Only give me six lines written in the hand of the most honest man, and I will find something there to hang him by.'

22. Skinner (2013) interview with Richard Marshall: https://www.opendemocracy.net/ourkingdom/quentin-skinner-richard-marshall/liberty-liberalism-and-surveillance-historic-overview.

23. Klass and others v Federal Republic of Germany, ECtHR, 2 EHRR 214 (6 September 1978) para 41.

24. S. and Marper v. the United Kingdom, Applications nos. 30562/04 and 30566/04, ECtHR, 48 EHRR. 50, (4 December 2008) para 121.

25. E.G. Zakharov (n19).

26. E.G. Digital Rights Ireland (n5) and Schrems (n16).

27. Szabó and Vissy v. Hungary, Application no. 37138/14, ECtHR (16 January 2016) para 53.

28. Parliamentary Debates, Commons, 6th series, vol. 607 (866).

29. ECHR Article 8 (1).

30. Declaration of Professor Edward W Felten in ACLU v Clapper and others, Case No. 13-cv-03994 (WHP) at the United States District Court, Southern District of New York, p14. Online at http://ia601803.us.archive.org/22/items/gov.uscourts.nysd.413072/gov.uscourts.nysd.413072.27.0.pdf.

32. ECHR Article 9 (1).

33. This is already being done by Facebook - see n35.

34. See for example http://searchengineland.com/how-google-now-siri-cortana-predict-what-you-want-229799.

35. See for example James Carmichael in http://www.theatlantic.com/technology/archive/2014/08/google-knows-you-better-than-you-know-yourself/378608/ and Jon Evans in http://techcrunch.com/2015/10/24/when-facebook-knows-you-better-than-you-know-yourself/.

37. ECHR Article 10 (1).

39. In Ashworth Hospital Authority v MGN Ltd [2002] 4 All ER 193, 210, Quoted in IOCCO ().

40. ECHR Article 6 (1).

41. ECHR Article 11 (1).

44. See http://www.bbc.co.uk/news/uk-politics-22984367.

46. See for example http://www.nytimes.com/2014/01/22/world/europe/ukraine-protests.html?_r=0.

47. See for example http://www.youtube.com/watch?v=6YimFEFvTzY.

48. ECHR Article 14.

50. See http://uk.businessinsider.com/why-straight-outta-compton-had-different-trailers-for-people-of-different-races ?

51. ECHR Article 8 (2).

53. For descriptions of the methods of the Stasi, see for example Garton Ash () or Vaizey ().

54. It is hard to measure 'internet freedom' in an objective way. But Freedom House's annual survey of internet freedom, gives some indication: the five countries rated 'least free' in 2015 were China (1st), Syria, Cuba, Bahrain and Vietnam (Freedom House ) whilst in Reporters Without Borders' 2013 special edition on Internet Surveillance listed the five 'State Enemies' as Vietnam, Bahrain, Syria, Iran and China (Reporters Without Borders ).

55. Set out in detail by the UK government in https://www.gov.uk/government/publications/policing-by-consent.

References

, Ethan Zuckerman, Jonathan Stray, Sheila Coronel, and Michael Schudson. 2013. Comment to Review Group on Intelligence and Communications Technologies Regarding the Effect of Mass Surveillance on the Practice of Journalism. http://towcenter.org/wp-content/uploads/2013/10/Letter-Effect-of-mass-surveillance-on-journalism.pdf.

Benkler, Yochai . 2013. "Fact: The NSA Gets Negligible Intel from Americans' Metadata." http://www.theguardian.com/commentisfree/2013/oct/08/nsa-bulk-metadata-surveillance-intelligence.

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Cullen, Sir Michael , and Dame Patsy Reddy. 2016. Report of the First Independent Review of Intelligence and Security in New Zealand. http://www.parliament.nz/en-nz/pb/presented/papers/51DBHOH_PAP68536_1/report-of-the-first-independent-review-of-intelligence.

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. 2010. "FRA and the European Convention on Human Rights - A Paradigm Shift in Swedish Electronic Surveillance Law." In Nordic Yearbook of Law and Information Technology, edited by D. W. Schartaum, 96-134. Bergen: Fagforlaget.

La Rue, Frank . 2013. "Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression." (United Nations)

PEN America. 2013. Chilling Effects: NSA Surveillance Drives U.S. Writers to Self-Censor. New York: PEN American Center.

Penney, Jonathon W. 2016. "Chilling Effects: Online Surveillance and Wikipedia Use." Berkeley Technology Law Journal. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2769645.

Stoycheff, Elizabeth . 2016. "Under Surveillance: Examining Facebook's Spiral of Silence Effects in the Wake of NSA Internet Monitoring." Journalism and Mass Communication Quarterly 93 (2): 296-311.

Taylor, Emily . 2016. The Privatization of Human Rights: Illusions of Consent, Automation and Neutrality. GCIG Paper Series No. 23 referring to Morozov 2014.

# data[].attributes.attachment_link.title
Data gathering, surveillance and human rights: recasting the debate

# data[].attributes.attachment_link.description
ABSTRACT The nature and depth of internet surveillance has been revealed to be very different from what had previously been publically acknowledged or politically debated. There are critical ways in which the current debate is miscast, misleading and confused. Privacy is portrayed as an individual right, in opposition to a collective need for security.