An Ideographic Analysis of the Struggle Between National Security and Privacy

Georgia State University ScholarWorks @ Georgia State University Communication Theses Department of Communication Summer 6-3-2010 [Redacted Text] and Surveillance: An Ideographic Analysis of the Struggle between National Security and Privacy Eric M. Connelly Georgia State University Follow this and additional works at: https://scholarworks.gsu.edu/communication_theses Part of the Communication Commons Recommended Citation Connelly, Eric M., "[Redacted Text] and Surveillance: An Ideographic Analysis of the Struggle between National Security and Privacy." Thesis, Georgia State University, 2010. https://scholarworks.gsu.edu/communication_theses/66 This Thesis is brought to you for free and open access by the Department of Communication at ScholarWorks @ Georgia State University. It has been accepted for inclusion in Communication Theses by an authorized administrator of ScholarWorks @ Georgia State University. For more information, please contact [email protected]. [REDACTED TEXT] AND SURVEILLANCE: AN IDEOGRAPHIC ANALYSIS OF THE STRUGGLE BETWEEN PRIVACY AND NATIONAL SECURITY by ERIC CONNELLY ABSRACT In the aftermath of the events of 9/11, the U.S. executive branch has repeatedly maintained that its need for action to secure the nation requires a revised interpretation of individual liberties. This study will explore the tensions between the positive ideographs <privacy> and <national security> in response to the negative ideograph <terrorism> in a contemporary United States court ruling. Using Burke’s pentad, and cluster analysis, as well as Brummett’s notion of strategic silence, the study examines how the FISCR substantially changed the interrelationship between the two ideographs. The study concludes that the FISCR situated strengthening national security as the purpose of the case it ruled on, which privileged national security over privacy. Throughout the expansion of <national security,> the court used silence to justify its decision. This analysis both adds to our understanding of the synchronic relationship between ideographs, and examines how the courts utilize such interplays to reconstitute community. INDEX WORDS: Ideograph, Privacy, National security, Synchronic relationships, Constitution, Silence, Cluster analysis, Pentadic analysis [REDACTED TEXT] AND SURVEILLANCE: AN IDEOGRAPHIC ANALYSIS OF THE STRUGGLE BETWEEN PRIVACY AND NATIONAL SECURITY by ERIC CONNELLY A Thesis Submitted in Partial Fulfillment of the Requirements for the Degree of Master of Arts in the College of Arts and Sciences Georgia State University 2010 Copyright by Eric Morgan Connelly 2010 [REDACTED TEXT] AND SURVEILLANCE: AN IDEOGRAPHIC ANALYSIS OF THE STRUGGLE BETWEEN PRIVACY AND NATIONAL SECURITY by ERIC CONNELLY Committee Chair: Carol Winkler Committee: David Cheshier Greg Lisby Electronic Version Approved: Office of Graduate Studies College of Arts and Sciences Georgia State University August 2010 iv ACKNOWLEDGEMENTS I would like to thank my endlessly supportive wife, Lauren, for all of her encouragement during the process of this research, as well as her patience through all the late nights and weekends. Dr. Greg Lisby and Dr. David Cheshier’s insight significantly strengthened this study, and I cannot imagine a more flexible, dedicated committee. Dr. Carol Winkler endured many hours talking about national security and reading about privacy. I could not ask for more in an adviser. I appreciate all of the contributions—I could not have completed this project without these people. v TABLE OF CONTENTS ACKNOWLEDGEMENTS iv 1 INTRODUCTION 1 1.1 Ideographs 5 1.2 Privacy as an Ideograph 9 1.3 National Security as an Ideograph 12 1.4 Analyzing Ideographs within Legal Discourse 17 1.5 Method 23 1.6 Chapter Outline 25 2 CONSTITUTION AND EXCEPTION 27 2.1 Pentadic Analysis of the FISCR Opinion 31 2.3 Agent 31 2.4 Act 32 2.5 Scene 33 2.6 Agency 38 2.7 Purpose 40 2.8 Conclusions 41 3 STATE SECRETS, REDACTION, SILENCE 45 3.1 The Scholarship on Silence 46 3.2 Judicial Justification for Silence 48 3.3 Executive/Legislative Justification for Silence 52 3.4 The FISCR Opinion 55 vi 3.5 The Petitioner 56 3.6 The Customers 57 3.7 The Chronology 59 3.8 The Surveillance Procedures 60 3.9 Criticisms of the PAA Surveillance 62 3.10 Conclusions 65 4 CONCLUSIONS 68 4.1 Ideographs, Constitution, and Silence 69 4.2 Contributions to Ideographic Theory 75 4.3 Limitations and Future Avenues of Research 76 BIBLIOGRAPHY 78 ENDNOTES 84 1 CHAPTER 1. INTRODUCTION In August 2008, the Foreign Intelligence Surveillance Court of Review (FISCR) issued a rare public judicial opinion on a case petitioning a warrantless directive to turn over information on customers, even U.S. citizens, considered to be outside the United States. The service provider argued that the directive issued under the Protect America Act violated its customers’ Fourth Amendment rights, and that the surveillance mandated by the directive was unreasonable. The FISCR disagreed, saying that safeguards to prevent unnecessary invasions of privacy were in place, and that the courts should not frustrate government attempts to protect its citizens.1 This opinion is an important, contemporary example of the longstanding confrontation between national security and civil liberties in U.S. history. Since the earliest days of the United States, political leaders have used national security as a warrant to curtail civil liberties in times of crisis. The Alien and Sedition Acts of 1798 restricted free speech during a quasi‐conflict with France, and during World War I, the Espionage Act of 1917 was similarly exercised. Abraham Lincoln suspended the writ of habeas corpus during the Civil War, and Franklin Roosevelt trampled due process by rounding up and holding Japanese citizens during World War II. In a December 1940 Fireside chat entitled “On National Security,” Roosevelt said, “This is not a fireside chat on war. It is a talk on national security; because the nub of the whole purpose of your President is to keep you now, and your children later, and your grandchildren much later, out of a last‐ ditch war for the preservation of American independence, and all of the things that 2 American independence means to you and to me and to ours.”2 In a speech to United States newspaper editors, John F. Kennedy cited the First Amendment’s need to bend before necessities of national security in times of duress and beseeched editors to ask, “Is this in the interests of national security?” before printing a story.3 These are just a handful of examples of national security in dissonance with civil liberties throughout United States history. Due to the development of privacy as a civil liberty within the context of technological advancements, national security and privacy more often begin to intersect in elite discourse in the 1950s. Samuel Warren and Louis Brandeis introduced the notion of privacy in U.S. law in 1890 in response to an increasingly invasive media. The article garnered support for privacy as a right, but an informal one. The development of telephones and surveillance equipment proved to be the step that brought security and privacy into conflict. Because communications technology linked people, the government could encroach on privacy through surveillance. By the 1960s, privacy had gained traction as a popular term. However, fearing communists, Joseph McCarthy and Richard Nixon justified surveillance programs that invaded privacy on national security grounds. In response to civil unrest related to unhappiness over Vietnam and the fear of communists, “The NSA, the CIA, and the FBI deployed conventional investigative techniques against a variety of domestic critics and political opponents, but engaged as well in break‐ins, mail openings, and warrantless wiretaps.”4 In addition, Nixon attempted to use the IRS and the Defense Intelligence Agency to stop internal threats, which included the use of extra‐constitutional searches and seizures.5 3 During the 1950s, 1960s, and 1970s, interests of national security and privacy increasingly collided, and courts more frequently allowed the government to invoke the state secrets privilege. In case law, United States v. Reynolds set an early precedent for state privilege to restrict information, and Halkin v. Helms reinforced the state secrets doctrine.6 In these cases of suspected privacy violations, plaintiffs were unable to prove any kind of damage had been done because the government argued that releasing information that might have built such cases would jeopardize national security. Laird v. Tatum and United States v. United States District Court are two surveillance cases from the early 1970s that further illustrate this synchronic relationship between privacy and national security.7 In Laird, the Plaintiff alleged the U.S. Army encroached on his privacy, but the court ruled that the danger of damage was too speculative. United States v. United States District Court, also known as the Keith case, directly led to the development of Foreign Intelligence Surveillance Act (FISA) and its court (FISC) for the approval of wiretaps. The growing problem of terrorism furthered the competition between privacy and national security. During the Reagan administration, in particular, surveillance in the guise of counterterrorism increasingly pitted the two terms against one another. During Reagan’s tenure, the FBI used surveillance to gather information on more than 100 groups highlighted by the Committee in Solidarity with the People of El Salvador. In addition, the FBI arrested a group of Middle Easterners, who became known as the L.A. 8, for supporting terrorists.8 Despite 10,000‐pages of evidence amassed by the government, the judge dismissed the case because it lacked merit. The judge accused the government of overreaching by 4 acting solely in the name of national security and said it was quite disturbing “to hear from the government its justification for its conduct in a case where the plaintiffs have made a preliminary showing that the government in effect treated them as if it could do whatever it wants.”9 In short, the 1980s shifted the public context for tensions between privacy and national security from communism to terrorism.

Load more