Warrantless Collection is Warranted.
Sam Houston State University
Law and Society
April 20, 2014
Warrantless Collection is Warranted
One of the most controversial topics of conversation today may be that of warrantless collection of personal electronic communication data in the United States. As recently as April 1, 2014, the United States government acknowledged that it has collected the private communications of U.S. citizens, and that it has examined the data gathered when it believes it is necessary to detect and prevent a terrorist attack (“U.S. Confirms,” 2014). This and other revelations about the program over the past several years have resulted in loud and vigorous debates about whether it is appropriate in a democracy. Proponents, especially those in the government, tout the necessity of keeping citizens and the country safe. On the other side of the argument, opponents of the program make robust arguments against the collection of our communication data.
One line of reasoning that may be espoused by opponents is that the gathering of the information violates the constitutional protection against unreasonable search and seizure, and similar arguments that challenge its legality. Other critics may opine that the intrusiveness is out of balance with the good that is actually done with the data being gathered. An analysis of the process, its legality, and the potential benefit to the American people is necessary to make an informed decision about whether the so-called warrantless surveillance program has value. When that is accomplished, it becomes clear that the program is legally defensible and provides real benefits to U.S. citizens.
Before analyzing the legality and value of the collection of communication data, it is important to understand to some degree the mechanics of the system. Harris gives an excellent summary of the nuts and bolts of the program in his National Journal article, “How Does the NSA Spy” (2006)? He relates that the National Security Agency gathers raw data in bulk from telecommunication companies, and then screens the portions identified as having a legal basis for analysis using ultra-sophisticated computer hardware and software to identify indicators that rate further examination by a human analyst (48-49). In theory, this initial scrub by the Novel Intelligence from Massive Data (NIMD) program (Harris, 48) makes an impossible task manageable by weeding out useless information and allowing human experts to analyze data that have the best chance of providing information that indicates a potential terrorist plot. For a large percentage of Americans whose data is collected and identified as being legal to analyze, then, no one is privy to their private communication.
Even so, Harris notes, the lion’s share of research and development dollars are spent on methods to gather and analyze data, and little money is spent on research regarding the...