GOVERNMENT SURVEILLANCE PROGRAM

The surveillance state exists wherever governments do. For a long time, government surveillance
was mostly associated with authoritarian regimes like East Germany, China, the Soviet Union,
and North Korea. But in recent decades, even countries known for democracy have started
surveilling their people a lot more closely. The current rise of large-scale government
surveillance is widely viewed with great concern. By many, existing government surveillance
programs are also deemed disproportionate. When democratic governments do surveillance on
their citizens, there are ethical issues to consider to understand what's wrong with it. Critics have
three main worries. First, they're concerned that by gathering lots of data, governments are taking
away people's privacy, regardless of whether they use that data. Second, they worry that even if
the data isn't used right away, it could still be looked at later, which also violates privacy. Lastly,
there's a concern that the data collected could be used for objectionable reasons.

Case Study:
Congress passed the Foreign Intelligence Surveillance Act in 1978 (FISA) 1. FISA set up
monitoring of the NSA, CIA, and other intelligence agencies so that they would target foreign
threats, not American citizens. The FISA law also established a secret Foreign Intelligence
Surveillance Court to which intelligence agencies could seek permission to conduct surveillance
and collect information from foreign suspects. Following the 9/11 attacks, Congress passed the
Patriot Act2, which greatly increased the NSA’s surveillance powers. PRISM3 is a classified
program operated by the United States National Security Agency (NSA) that gathers internet
communications from multiple American internet companies. It was initiated in 2007 following
the enactment of the Protect America Act4 during the Bush Administration. The program is
overseen by the U.S. Foreign Intelligence Surveillance Court. According to NSA, PRISM only
focuses on gathering internet communications and does not include telephone conversations. The
collection of internet communications is not done indiscriminately; rather, it is targeted towards
specific selectors such as email addresses. Therefore, the data is not collected in a bulk and does
not involve collecting data based on keywords or individual names.

Advocates argue that it plays a crucial role in national security efforts by allowing the
government to monitor and prevent potential threats to the country. They say that in an
increasingly digital world where terrorists can use online platforms to communicate and plan
attacks, it is necessary for staying ahead of emerging threats. Under international law, any
government surveillance program must adhere to certain principles to be considered lawful.
These principles include legality, necessity, proportionality, and oversight. Surveillance

1 (The Foreign Intelligence Surveillance Act of 1978 (FISA) | Bureau of Justice Assistance, n.d.)
2 (USA PATRIOT Act, 2007)
3 (PRISM | United States Surveillance Program, n.d.)
4 (What Is the Protect America Act?, n.d.)
measures must be prescribed by law, necessary for achieving a legitimate aim (such as national
security), proportionate to the threat, and subject to independent oversight to prevent abuse.
Critics of the PRISM program argue that it violates these principles by engaging in mass
surveillance without adequate legal authorization or oversight. They argue that the program's
bulk collection of internet communications could breach individuals' right to privacy and
freedom of expression, particularly if the surveillance is not targeted at specific suspects and
lacks transparency.

Edward Snowden
On June 6, 2013, Americans learned that their government was spying broadly on its own people
when The Guardian and The Washington Post published the first of a series of reports put
together from documents leaked by an anonymous source. The material exposed a government-
run surveillance program that monitored the communications records of not just criminals or
potential terrorists, but law-abiding citizens as well. Three days later the source unmasked
himself as Edward Snowden. Between 2006 and 2012, Edward Snowden, worked for the CIA as
well as major tech contractors for the NSA. He maintained computer systems and received
security clearance which gave him access to secret documents. While working at a secret NSA
facility in Hawaii, he first complained to supervisors about the NSA’s “illegal activities,” mostly
under the PRISM program5. Snowden believed the U.S. was violating the privacy rights of
American citizens as well as international law. Between 2001 and 2006, President George W.
Bush secretly authorized the NSA to collect phone metadata from nearly all Americans in a
program known as "bulk collection." which was later passed to the secret FISA Court. Edward
Snowden's leaks revealed a secret FISA Court order instructing Verizon, a telecommunication
company, to provide metadata of all its customers and the PRISM program, which collected data
from Internet companies like Microsoft and Google 6. These leaks sparked criticism of NSA
surveillance, with concerns over Fourth Amendment violations and privacy invasions. The
government defended the programs' legality, but no evidence showed they thwarted terrorist
attacks.

The public’s awareness of this issue dramatically increased with Edward Snowden’s leaks. The
documents disclosed by Snowden unveiled the extent to which governments collaborated with
one another and corporations to establish a system for the collection, analysis, and use of data on
their citizens and non-citizens alike. The Snowden leaks resulted in some policy changes by
governments like the bulk collection of metadata be transferred to a non-government entity, such
as telephone companies. On June 2, 2015, Congress passed the USA FREEDOM Act (Freedom
Act)7. Under the new legislation, the NSA was prohibited from directly collecting metadata but
could access records stored by telephone companies through a FISA Court order if it could

5 (Mullen, 2020)
6 (Teach Democracy, n.d.)
7 (USA Freedom Act | House Judiciary Committee Republicans, 2022)
demonstrate a "reasonable articulable suspicion" of terrorism links. Telephone companies were
mandated to delete metadata after 18 months and notable FISA Court rulings were required to be
made public.

While a country surveilling its own citizens may be indirectly influenced by international
standards, the more complex issue of states surveilling non-citizens could potentially be
addressed through international institutions and law. The right to privacy is enshrined in
foundational documents of international institutions. For instance, the International Covenant on
Civil and Political Rights (ICCPR) asserts that "no one shall be subjected to arbitrary
interference with his privacy, family, home or correspondence." However, unlike transnational
issues where international agreements have facilitated solutions through shared responsibility,
there has been limited cooperation among governments in addressing the consequences of
surveillance. Surveillance, unlike other internationally significant issues, often operates in
secrecy and rarely causes direct harm. This reduces the incentive for states to cooperate in
limiting surveillance activities, as the perceived benefits for intelligence and national security
interests outweigh the costs of covert surveillance.

In conclusion, Edward Snowden's leaks changed how people see government surveillance and
made governments rethink their policies. They showed how much surveillance happens,
especially in the US, and made people worry about privacy and their rights. The PRISM program
was a big example of how much surveillance happens, even on people who aren't from the
country. In response to public outcry and pressure for reform, the US government made some
policy changes, such as the passing of the USA FREEDOM Act, which aimed to provide greater
oversight and transparency regarding surveillance activities. Still, there are difficulties in
balancing the need for surveillance to keep a country safe with protecting people's privacy rights
and following international laws. Addressing the complexities of surveillance, particularly
concerning non-citizens, will require efforts at both national and international levels. Striking a
balance between security imperatives and respect for fundamental rights will require dialogue,
legislative reforms, and increased oversight systems. The legacy of Snowden's leaks underscores
the importance of vigilant oversight, accountability, and adherence to principles of legality and
proportionality in the realm of government surveillance.

PRIVACY IN DIGITAL DATA

The rise of new technology has made it easier for people to communicate and share information,
which boosts freedom of speech and democracy. In today's digital age, advancements in
communication technologies have empowered governments, businesses, and individuals to
conduct surveillance, interception, and data collection more effectively than ever before. The
scale and duration of state surveillance are no longer limited and have enabled governments to
engage in simultaneous, invasive, targeted, and wide-ranging surveillance activities on an
unprecedented scale.

Governments have been accused of engaging in mass surveillance as a routine practice rather
than an exceptional measure. Reports indicate that governments have coerced telecommunication
and wireless equipment companies to grant access to communication traffic, tapped fiber-optic
cables for surveillance purposes, and compelled companies to disclose bulk information on
customers and employees. The revelations in 2013 and 2014 further heightened concerns,
revealing that the National Security Agency in the United States and the General
Communications Headquarters in the United Kingdom have developed technologies enabling
access to extensive global internet traffic and other digital communications content.

UN Resolution

Following the concerns of Member States and other stakeholders at the negative impact of these
surveillance practices on human rights, in December 2013 the General Assembly adopted
resolution 68/1678, without a vote, on the right to privacy in the digital age. In the resolution,
which was co-sponsored by 57 Member States, it affirmed that the rights held by people offline
must also be protected online, and called upon all States to respect and protect the right to
privacy in digital communication. It further called upon all States to review their procedures,
practices and legislation related to communications surveillance, interception and collection of
personal data, emphasizing the need for States to ensure the full and effective implementation of
their obligations under international human rights law. In resolution 68/167, the General
Assembly asked the United Nations High Commissioner for Human Rights to prepare a report on
protecting people's privacy in the face of domestic and international surveillance, including
digital communications interception and mass data collection.

Interference with privacy

Various international and regional human rights bodies and experts have offered guidance on
what constitutes interference with privacy. The Human Rights Committee, for instance,
emphasized in its general comment No. 16 that individuals' communications should be protected
from interception or reading. Some argue that sharing personal information online is a trade-off
for access to digital services and goods. There's a debate about whether collecting data about
communication (metadata) constitutes privacy interference. However, metadata can reveal a lot
about an individual's behavior and identity. This realization has led to efforts to reform policies
to strengthen privacy protection. Therefore, mass surveillance programs inherently interfere with
privacy, and it's the responsibility of the state to prove that such interference is neither arbitrary
nor unlawful. Bulk collection of data constitutes an interference with the right to privacy.
Jurisprudence from the European Court of Human Rights was relied on to argue that non-
targeted surveillance undermines the rule of law 9. However others were of the opinion that the
bulk collection of data may not necessarily be disproportionate, but rather its use and storage

8 (UN. General Assembly (68th sess. : 2013-2014), 2014)

9 (Echr, n.d.)
might be. Lack of transparency was cited as a recurring obstacle to seeking judicial review of the
proportionality of data surveillance.

What is lawful?

The right to privacy is protected under international human rights law, and any interference with
it must not be random or against the law. Even if surveillance is allowed by national law, it can
still be unlawful if it goes against international rights. The term "arbitrary interference" means
that even if surveillance is legal, it still needs to follow the goals of the law and be reasonable in
the situation. When assessing if surveillance is necessary, it must not take away from the essence
of the right to privacy and must be the least intrusive option available. Governments often justify
surveillance for national security reasons, especially to prevent terrorism. However, surveillance
should be proportionate to the threat it's addressing.