U.S. NSA subterfuge for private data is an affront to the First Amendment

Editor's note: Stephen Ndegwa, a special commentator on current affairs for CGTN, is the executive director of South-South Dialogues, a Nairobi-based communications development think tank. The article reflects the author's opinions and not necessarily the views of CGTN. 

The plot of the legendary British writer George Orwell's 1949 dystopian novel, "1984," revolves around the struggles of protagonist Winston Smith against the oppressive Party and the ubiquitous "Big Brother." The book, set in the fictitious state of Oceania, depicts the power of the state to snoop into everyone's private affairs, and use it to achieve certain nefarious purposes.

Although the "1984" classic is decades-old, it is eerily relevant to the status quo in modern day United States arising from the recent revelations that the National Security Agency (NSA) buys Americans' internet browsing information from commercial brokers without a warrant.

According to a statement by Democratic Senator Ron Wyden on January 25 following a letter sent to him by NSA director on December 11, "such records can identify Americans who are seeking help from a suicide hotline or a hotline for survivors of sexual assault or domestic abuse." Significantly, the data includes Americans' internet and location data, electronic devices being used both within and outside the U.S., and what apps they use.

Well, to be objective, most Americans have at least an inkling that the requirements and protection of the U.S. Federal Trade Commission (FTC) do not prevent their government from occasionally snooping on their digital lives, ostensibly for national security purposes. The FTC's mission, as stated, is "protecting the public from deceptive or unfair business practices and from unfair methods of competition through law enforcement, advocacy, research, and education."

Most states in the world understandably feel the urge to keep a tab on their citizenry for signs of threats to national security, and for general cybersecurity purposes. But unless there is imminent danger that precipitates a crisis, the state has a responsibility to inform targeted persons or populations that their data is under surveillance for public good. The covert manner of access of the U.S. government amounts to spying on the private lives of its citizens.

The revelations also expose the symbiotic relationship between the U.S. government and the country's megacorps. The fact that the NSA has been buying private data from commercial brokers reflects an unspoken quid pro quo in the mutual protection of each other's interests. This turns the U.S. citizenry into a pawn in the high stakes game of U.S. hegemony.

For all its pontification to other countries about respect for human rights, and especially on freedom of expression and association, these revelations have exposed not only the superpower's doublespeak, but also its utter insecurity. The infringement of provisions of the much touted First Amendment betrays infidelity of the U.S. government to one of the major tenets of the country's Constitution. Among other safeguards, the First Amendment protects Americans' freedom of speech, the press, and assembly.

Experts now see the blocking of Chinese digital technology in the U.S. on accusations of espionage as a smokescreen for operations like those of the NSA, and the U.S. intelligence ecosystem as a whole. The U.S. populace is distracted from the real enemy within, and made to see countries like China as the threat to their private data.

The revelations beg the question whether Americans will now seek justice or compensation for the infringement of privacy through the same FTC that seems to be either ineffective or complicit in the covert operations of the NSA. Still, the FTC likely feels intimidated by power yielded by the NSA to use clauses that give it power to access private data without express authority of the source.

This is not the first time that U.S. intelligence agencies are being accused of violation of oversight guidelines in accessing and storing personal information on Americans. A report to the Director of National Intelligence Avril Haines on "commercially available information" (CAI), which is dated January 2022, cited the growing appetite of the NSA for Americans' data sourced from for-purchase data companies.

The report warns that this overreliance on CAI poses a grave threat to Americans' private lives. The government can misuse the data for tracking citizens' every move, thus curtailing their freedom of movement and association. The ease of access also means that it is possible to breach strict constitutional safeguards for such an exercise, exposing people unnecessarily. The massive data breach is also reflective of Americans' love and yearning for scandal where the media leads in snooping on celebrity lives for profit and domestic political objectives.

Further, the increasing demand for CAI has led to an unhealthy growth of outfits offering this service. A major consequence is that sensitive personal data is likely to land in the hands of a rogue corporate or even individual users, who might deploy it to profile individuals for blackmail or to compromise their personal security. A tacit acceptance of the current status quo can only embolden the intrusion on the personal lives of Americans through more blatant prying on their digital footprints.

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