Did you know that Yahoo has secretly scanned its user’s emails following instructions from a US spy agency? Officials are trying very hard to loosen up the constitutional protections that safeguard Americans from arbitrary government searches.
In a move aimed at moving focus of US courts away from what qualifies as a distinct search, to what is reasonable, the Foreign Intelligence Surveillance Court (FSIC) gave the order as a result of the governments drive to change the way we interpret the Fourth Amendment’s right to secure people from unreasonable searches and seizures.
The push is meant to disqualify the automated programs from causing unreasonable harm. However, the argument is based on the amount of data people make available about themselves, which can contain clues that might help authorities to disrupt attacks. Whenever an automated program searches through all the digital data, that counts as a search. If the computer flags someone, further intrusion would be deemed reasonable.
It’s obvious that the attempt to grant law enforcement agencies and intelligence services access to scan large amounts of online data without a court order conflicts with the Fourth Amendment since innocent messages are included in the initial data sweep. A former Federal prosecutor and law school expert on surveillance, Orin Kerr, made a statement saying that a lot of it is unrecognizable from a Fourth Amendment perspective adding that it’s not where the traditional Fourth Amendment law lies.
The general counsel of the Office of the Director of National Intelligence (ODNI) made a statement arguing that the legal interpretation of the Fourth Amendment ought to be adjusted to keep up with technological changes. Adding that the computerized scanning of communications in the same way that email service providers scan for viruses should not be considered a search that requires a warrant for the Fourth Amendment purposes.
The NSA and Yahoo declined to expound on the precise basis for the order as the details remain classified. However, Reuters reported that it was aimed at isolating a digital signature for an individual or small team working on behalf of a foreign government that’s often at odds with the U.S. This might have been part of the efforts to prove that Russia steered the course of the election. However, the ODNI is expected to disclose an estimated number of Americans who have had their electronic communications involved in online surveillance programs that were meant for foreigners.
The expansion of legalized surveillance in Congress and the courtrooms is being curbed by the American Civil Liberties Union and the Electronic Frontier Foundation as they all fight FISC’s efforts to undermine the Fourth Amendment by heading to public courts.