Fourth Amendment protections and FISA surveillance of social media

Counter-Terrorism and Social Media: Freedom vs. Security

The United States prides itself to being the most democratic nation of the world, with the highest respect for the human being, for its values, norms, and dreams. At the same time, before 9/11, it was also considered to be one of the safest nations of the world. The attacks on the World Trade Center towers, in particular pointed out that there are gaps in security and that even the United States represent a vulnerable target. Since then, the security measures have been seriously increased, in certain areas of expertise; security rules have been created if they did not exist. All these measures fueled a constant debate on whether the security that has been increased affects or not the liberties and freedoms of the American population.

On May 1st 2011, Osama bin Laden has been announced dead by the U.S. President, Barack Obama

. Apparently, all the security measures have been useful as they prevented any new attack on the American soil. Even more, the strive to fight terrorism and its complex structure is being proven at the moment. However, there are still questions on the limit the state can interfere in the private and social life of the individuals.

The present paper assesses the way in which the Fourth Amendment and FISA (the Foreign Intelligence Surveillance Act) should be interpreted when considering the bounds of electronic surveillance of social media sites; there should be a reasonable expectation of privacy on these platforms; the introduction of public communication mediums (social media platforms) creates a new category of electronic communication and should be interpreted differently by FISA based on its nature as a public rather than a private medium.

The structure of the research follows three parts. The first part represents a background of the fight against terrorism with clear distinction on the measures undertaken by the U.S. administration to protect its citizens on the one hand and to fight terrorism on the other hand. These include different legislative packages that aim to monitor the activities on citizens in all environments. As seen in recent events in the Middle East, the socializing networks play a major role in the social dynamics of the community. Therefore, it was only natural that some clear targets for some legislative action were the social networks such as Facebook, Twitter or MySpace.

The second part of the research focuses on specific legal cases involving the Forth Amendment and its implications for social privacy and civil rights as well as the FISA. This is important because the United States Constitution clearly protects the right of the individual to privacy, to property, and fair trial.

The third part follows on the conclusions, with due regard for the background and the specific cases presented.

Part one: Background

Terrorism has been a serious security threat for more than a century now. Despite the fact that terrorist actions are known to have occurred since the early days of the Greek and Roman republics, to this day there is no generally accepted definition of the notion. There are certain general definitions such as the one provided by the United Nations that considers terrorism to be the "peacetime equivalent of a war crime"

whose content does not point out the entire complexity of the phenomenon.

The United States has defined the act of terrorism under the Patriot Act of 2001. Thus, it is considered a terrorist action the "activities that involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State or appear to be intended to intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction, assassination, or kidnapping" (The Patriot Act, 2001). In this context, the issue of terrorism became a center stage subject and measures to limit and eliminate the effects of terrorist actions have been set in place.

Taking into account the situation created by the 9/11 events, the Counter Terrorism Fund was created, through the Patriot Act as well, a source of financial and institutional support for the counter measures the U.S. would eventually take in order to deter further terrorist attacks. In this sense, such actions included increased surveillance of suspected terrorist individuals, the interception of online, telephone or video communication (The Patriot Act, 2001). Despite the fact that such measures were debated at length, the act was approved and implemented.

The necessity to understand the motivations and techniques of the terrorist forces is essential because it offers the possibility of counter terrorist agencies to have a better view on their enemy. Traditional threats are most of the time known to their adversaries and their defeat is easier. However, in the case of terrorism, which cannot be identified without a doubt with a particular face or region of the world, the fight against terrorist organizations is more difficult and subject to failure.

The possible motives for terrorists around the world and in America are multiple. In the first situation, these include religion beliefs, political extremism, and even international influence. The terrorist phenomenon is influenced by the globalization of relations; thus, it may be that certain terrorist groups from Asia can be influenced by the religious motivated Middle East terrorists; without any ideological or religious connection, they come to endorse each other's terrorists' acts; this in turn creates a chain reaction which determines the large range of activity of terrorism.

The discussion over the issue of counterterrorism being a tactic of warfare or crime fighting is a rather sensible issue. This is largely due to the fact that there are at least two perspectives for the issue at hand.

In the first situation, for the terrorist supporters and for the ones actually engaged in the practice of political violence, counter terrorist measure are indeed considered to be actions related to warfare. The initiatives taken as a result of the implementation of the Patriot Act are seen as even against the privacy of the American individuals. Therefore, from this point-of-view, it would be fair to say that surveillance methods used by the U.S. Or even the preemptive attacks over Iraq can be seen as a sign of warfare; such a state of war must not necessarily imply armed conflict but even mere clashes through speeches, national addresses, or even through propagandistic actions.

On the other hand, there is the perspective the states imposing this type of legislation, similar to the one established in America. In this sense, the surveillance practices, the limited access in the country and only after comprehensive search has been motivated by the fact that the Patriot Act would eventually decrease the terrorist threat and limit the area of their activity.

Yet another point-of-view to this situation is the one underlining the fact that counterterrorism can be considered a means of warfare, from the perspective of the preemptive strikes doctrine

. In this respect, actions must be taken even if there is only a suspicion of something would threaten the security of the state. In these conditions, preemptive strikes are essential for the usefulness of the doctrine because they offer the possibility of actually preventing a terrorist act. This can be said to have been the case with the war in Iraq, whose territory was invaded under the suspicion of WMD that represented a possible threat to the address of the U.S. The preemptive strikes tried to reduce and eliminate this threat.

Crime fighting on the other hand implies a different labeling of the participants. In this case, the individuals engaged in criminal activities or terrorist ones are considered to be mere criminals and are therefore treated as common criminals according to the already established criminal code. By contrast, should terrorists be accused of being involved in terrorist acts, they are subject to much tougher and restrictive rules than the regular thief. From this perspective, the distinction appears to be essential.

The fight against terrorism and the global security issues of the 21st century demanded a new type of organization at the level of the information services, as well as the improvement and adaptation of information gathering and analyzing techniques. After the Commission examining the 9/11 events reached the conclusion that underlined the fact that the events were also part of a failure of information, the reform of the information system was deemed necessary.

The Patriot Act has approved through its content a series of new surveillance techniques that have raised the question of privacy in the United States. More precisely, the government is allowed and entitled to support different information gathering activities, although in many instances the right to privacy is often disregarded.

The interceptions of telephone conversations, of personal mail, electronic mail, even the basic e-mails sent and received throughout America are considered to be common practice nowadays. The debate over the issue of security and preemptive strikes doctrine as opposed to the right to privacy and the right to a private life have taken into account the increased necessity of both. However, while the Republicans argue for the supremacy of the Patriot Act, no matter the costs involved, the Democrats, although not dismissing entirely the idea of actions against terrorists on the homeland, do consider the right to privacy as being crucial in the development of a normal and democratic society.

FISA represents the acronym for Foreign Intelligence Surveillance Act, a Cold War piece of legislation that regulates the foreign electronic surveillance techniques used by the U.S. intelligence agencies. More precisely the 1978 Act "establishes a legal regime for foreign intelligence surveillance separate from ordinary law enforcement surveillance"

. The most important goal of the act was to establish a legal framework for the surveillance activities in the conditions in which the Cold War and the conflicts determining the confrontations were largely based on the war of information.

The Act, through the Patriot Act amendment includes nowadays surveillance actions for both internal and foreign aid. In a court decision on the right of the President to protect its nation and address the situations of endanger through every means possible, the Court dully noted this consideration and indeed confirm the President's right to use all necessary means to ensure the protection of the citizens. Even so, the court dismissed the surveillance investigations done in that case, with due consideration for the need to create a legal document that would allow the President and its delegates to protect the nation. FISA and the Patriot Act were created.

The FISA Court is a specially designed judicial authority whose seven judges "review the Attorney General's applications for authorization of electronic surveillance aimed at obtaining foreign intelligence information"

. It is considered to be secret because there are few authorized people who have access to the files and folders under analysis. The procedures are non-adversarial and take into account only the presentations available from the Department of Justice. The judges meet two days every month, while two of them are of service in Washington.

One of the most important roles of the FISC is the granting of authority to law enforcement organs. More precisely, they offer the Attorney General the authority to advance or not in the process of a surveillance operation. Therefore, it can be said that the FISC plays a crucial role in determining whether certain activities for information gathering can take place or not.

FISC is different from other courts because, on the one hand it deals with more sensitive issues that any other court. Secret intelligence and counterterrorist related activities are not an issue open for public and therefore differs from regular court hearings. On the other hand, it is not addressed to the general public. Even the files submitted for analysis to the Court are not available "even to persons whose prosecutions are based on evidence obtained under FISA warrants, except to a limited degree set by district judges' rulings on motions to suppress."

Unlike the FISC, the regular circuit courts make the files available to the ones involved.

Aviation has suffered a major shock after the 9/11 attacks. The companies, as well as private citizens were suspicious of the security measures each of them, in their part, had to take in order to maintain a high standard of security. Following the attacks, the government set in place a piece of legislation that allowed an increased standard of security.

The Aviation and Transportation Act of 2001 established the Transportation Security Administration, an institutional instrument designed to ensure a better coherence in terms of the security efforts made at the level of the transportation routes. The actions of this organism include the coordination of various security checks techniques such as "passengers go (ing) through metal detectors, carry-on bags are x-rayed, and checked baggage passes through an explosive detection system"

. The act and the institution created changed the way in which aviation security is viewed. The controls have become more rigorous, the waiting periods are lingered and people are less willing to accept this uncomfortable situation. Furthermore, there are now restrictions imposed to the precise items one can transport on an airplane.

Racial and religious profiling for the consumers and the companies involved plays a major role in the aviation security, both. More precisely, the general idea about the Arab population has become a negative one due to the fact that Islamic fundamentalists are considered to be responsible for the 9/11 attacks. They are looked at suspiciously and may be subject to tighter controls. Despite the unfortunate experience and event the U.S. had to go through in 2001, there should be a limit imposed to such involuntary discriminatory behavior because in a democratic country, no matter its historical experience, each individual should be considered honest until proven otherwise. Moreover, one cannot label a nation as being terror related for the simple fact that Bin Laden is part of the Arab world

FISA Interpretation of Social Networks

There is a wide debate on the regime of social networks and its relation and usefulness for the law enforcement apparatus. On the one hand, it is considered that for instance the content shared on Facebook is private as it is strictly related to the user. On the other hand, the terms and conditions posted on the Internet and agreed upon when producing a user profile clearly state that "Information set to "everyone" is publicly available information . . . [and] may be accessed by everyone on the Internet (including people not logged into Facebook), be indexed by third party search engines . . . And may also be associated with you . . . even outside of Facebook. . . . The default privacy setting for certain types of information you post on Facebook is set to ?everyone"

. Therefore, when posting a profile or personal information online, it implies a public appearance of that information. Simple logic considers these facts to be sufficient to allow everybody, which includes in most cases even the police to access this information, as there has been a prior acceptance of this fact.

At the same time though, this logic is not always applied as the Fourth Amendment in some situations may consider the use of technology as being legal and in other circumstance illegal. More precisely, in the 1928 case Olmstead v. United States it was considered that the wiretapping of telephone conversations was not admissible as evidence, regardless of the fact that the wires were placed on public domain, with no intrusion on the personal property of the accused

. Moreover, the ruling of the Court provided that it was the responsibility of the Congress to enlarge the meaning and interpretation of the Fourth Amendment to include such provisions. The discussion was not necessarily on whether the evidence was illegally obtained, as the police supported and justified its claim it was legitimate, but rather if it had been a violation of the Fourth or Fifth Amendments.

The case United States v. Katz of 1967 was a breakthrough in terms of the interpretation of the Fourth Amendment. The case involved wiretapping of a public telephone under suspicion that Charles Katz was planning a crime. The police had tapped the public telephones in question and alleged to tap only Katz while in the booth. The ruling of the Court came against the police's actions as it was considered that in fact the Fourth Amendment focuses on "protecting people not places

." Moreover, the conclusion of the case was that "this ?celebrated but underappreciated discussion of the telephone booth demonstrates a willingness on the part of the Court to analyze the impact of its holding on the communicative practices of average citizens.139 The Court concluded protection was warranted for private communications -- even those occurring in a place accessible to the public"

As presented above, the Foreign Intelligence Surveillance Act is a legal act through which the state can intercept and monitor the online, telephone, and other communications without any warrant or probable suspicion of a crime being committed. This action has been undertaken especially given the amendment to the Act, the Patriot Act of 2007. These activities have included in fact the background on the war on terror that is being fought especially since 2001.

The legal problems arising from the applicability of FISA and the Fourth Amendment are apparently simple. More precisely, FISA allows the intelligence community as well as the entire police force to interfere and monitor the activities of U.S. citizens as well as other members of the community online in particular. On the other hand, the Fourth Amendment aims to protect this privacy by providing a secure means of controlling the abuses. Thus, the Fourth points out the necessity of a warrant. The caseload of the courts eliminated the warrant as being mandatory, yet provided the clear necessity of a reasonable charge and supposition of a crime being committed. Even so, regardless of previous interpretations of the Fourth and FISA, in the name of the war on terror, such privacy matters have become somewhat dissolute. This aspect is obvious in the way in which the aviation security increased up to the point of breaching the most basic privacy limits.

The relation between FISA, the Fourth Amendment, and the social networks is however much more complex. It implies, for interpretation, the presence of the third party. More precisely, the role of the expectations of the citizens to privacy is in this case limited

. When agreeing on the terms and conditions provided by the social network interface, it is considered that the user has fully agreed to these terms, and not just as a step for the next stage in creating the user profile. Therefore, from the part of the user, there is indeed a limited expectation in terms of privacy. In case of privacy needs, the user can modify its settings and allow for the information to be available only to the users selected.

This assumption is based on the Smith v. Maryland case of 1979 in which the wiretapping was placed a telephone company property and it intercepted only the number being dialed at. There was no taping of the actual conversations. The case is rather similar to that related to social networks; it focuses clearly on the expectations of the users to actually have privacy. More precisely, the Court ruled in Smith v Maryland that there was no clear expectation of the telephone user to have privacy given the fact that before the digital technology, at the beginning of telephone use, the start of a conversation with another user implied the communication of the number to an operation that would have eventually dialed the number and made the connection. The rule of the court pointed out that "people in general [do not] entertain any actual expectation of privacy in the numbers they dial. (…)Thus, because citizens expected the seized information to be collected by the telephone companies anyway (after all, the dialed numbers are listed on the phone bill), any privacy expectation in that information was unreasonable. The simple act of disclosure to a third party can destroy one's privacy expectations in shared non-content information"

The issue of third party disclosure can also be interpreted in various forms and means. It is important to note though that it is difficult to ascertain the number of social network users who take into account the possibility of having their Facebook or Twitter status or profile monitored by government agencies. This is rather hard to determine because most of the users of social networks rarely actually read the provisions stipulated in the terms and conditions provided by the social networks. This is why, the third party disclosure and the inherent lost of privacy expectation can be interpreted.

Another means of interpretation of the third party disclosure takes into account the fact that in most cases argued by the police, the interception was done for the localization of the direction of conversation and not the actual content of the conversation. According to the courts, the Fourth Amendment protects the content of the conversation, and citing the content requires a police warrant. This can also be applied in terms of the social networks and the way in which these are monitored. Given the third party disclosure, users have to have in mind the possibility that their information is part of the public domain and therefore available to all users, depending on settings.

Another aspect that has relevance to the capacity of law enforcement units is related to the monitoring of email addresses

. However, this as well is most often justified through the same third party disclosure considering that the email addresses are in a sense part of the public domain as well. However, in terms of the actual reason for which the surveillance acts have been created, the scrutiny of social networks is applied to the one of terrorist networks as well. Better said, "the baseline results show a near-linear dependence of accuracy of network mapping on signal-to-noise ration, in case of purely random sampling of communications. This is expected due to the fact that random sampling has an equal chance of discovering all edges of the network, whether they belong to a highly connected agent or to a near-isolate agent. The probability of discovery of an edge at any given time is thus proportional to the ratio of messages that are captured and overall message traffic - which comprises the effective signal-to- noise ratio"

Conclusions

The 9/11 2001 events have marked a decisive moment in the history of the United States because it provided the most important case in which the country reached its vulnerable peak. From that moment onwards, the efforts made in the fight against terrorism and the fight against terror and insecurity have been relentless.

The United States Constitution has provided, from its creation and in the decades that followed, provisions that would ensure the proper protection of the rights of the individual and of the citizen. The Fourth Amendment is in this sense an important piece of legislation because it points out, on the one hand, the limits of one's own liberties, and on the other, the limits of the law enforcement agencies in relation to the privacy of the individual.

The technological advancement and the use of the Internet have made certain legal aspects become dissolute or subject to interpretation. The cases that have been before local and higher courts have determined a broader sense of the Fourth Amendment as well as of the FISA. These include the appeal to the best judgment of the law enforcing officers when making a search or a stop. However, given the new technologies and the virtual environment that is the Internet, communication has become more facile and so has crime organization. From this point-of-view, the surveillance capacities and the legal aspects concerning these actions have also been reconsidered. There are numerous cases of accusations of breach of privacy in relation to Internet activity.

It is rather difficult for the legislation process to keep the pace with the technological advancements, as it is the case with the social networks. Despite the fact that there is no clear legal consideration of the surveillance of activities on social networks, the resolution of such allegations as breaches of privacy should be dealt with taking into account basic principles such as the third party disclosure. More precisely, given the fact that by definition social networks are part of the public domain, with due regard to privacy settings, it is only natural that all those part of the public domain to have access to the encryption and content of these messages. When stored in the personal computer, the access to such information should clearly be made through a court warrant legitimizing the breach; however, when users of the social network agree upon the terms and conditions, the risk of this information being available to the entire community must be taken.