Not so long ago, the notion that the federal government spies on Americans was enough to have someone dismissed as a conspiracy nut.
For most Americans, such a concept was bizarre, far-reaching and implausible — as it would suggest that the government willingly would act outside of the Constitution and the Fourth Amendment’s protection against unreasonable search and seizure. Such arguments were seen as the dominion of libertarians — such as Sen. Rand Paul (R-Ky.), who feels that the government is too large and intrusive in private lives — and anti-government factions, such as the Tea Party.
It seems the conspiracy theorists were right. According to the Washington Post, the National Security Agency and the FBI have been obtaining information from the servers at Microsoft, Yahoo, Google, Facebook, AOL, Skype, PalTalk, YouTube and Apple, extracting and storing communication — including audio and video chats, photographs, emails, documents and communication logs — that helps security analysts track foreign targets .
Under a classified program called PRISM, the NSA surveys the communication that flowed through the servers of these American-based companies. The arrangement allowed the agencies to intercept communication even when it happens between two locations abroad — because the communication would use an American server as a connection point.
While the Patriot Act permits the intelligence community to listen without a warrant to communications involving someone in a foreign country, the surveillance of American citizens requires a court order.
Under four classified orders issued by the Foreign Intelligence Surveillance Court, massive data sets were classified as “facilities” for the purpose of surveillance on the suspicion of connection with terrorism, according to the Post. Using these orders and with the understanding that reasonable procedures are in place to minimize the collection of information on “U.S. persons” without a warrant, the NSA was given a free hand to carry out its surveillance.
One of the warrants specifically gave the FBI access to the subscriber records for Verizon from April 25 to July 19. The calls’ location data, call duration, unique identifiers and time and duration were turned over to the NSA, but not the actual content of the calls. Verizon declined comment on the case. While the law does permit the government access to calls’ metadata without a warrant, large-scale surveillance would require approval from the secret court.
More pointedly, this raises an important question: How can the NSA ascertain the importance of a call without actually listening to it?
Whistleblowing against the government
Revelations about the NSA program were leaked by Edward Snowden, a 29-year-old former CIA technical assistant who is currently fighting extradition to the U.S. from Hong Kong.
While it is unlikely that the Chinese government will honor his request for protection, Snowden still feels that he did the right thing.
As reported by The Guardian, «For him, it is a matter of principle. ‘The government has granted itself power it is not entitled to. There is no public oversight. The result is people like myself have the latitude to go further than they are allowed to,’ he said.
«His allegiance to internet freedom is reflected in the stickers on his laptop: ‘I support Online Rights: Electronic Frontier Foundation,’ reads one. Another hails the online organisation offering anonymity, the Tor Project.»
Not all agree that Snowden is a patriot. Director of National Intelligence James R. Clapper said in a statement, “Information collected under this program is among the most important and valuable foreign intelligence information we collect, and is used to protect our nation from a wide variety of threats. The unauthorized disclosure of information about this important and entirely legal program is reprehensible and risks important protections for the security of Americans.”
The NSA started PRISM under President Bush in 2007. However, it would be unfair to call this a Bush administration program.
Michael Hayden, former director of the NSA and CIA, defended the use of the program of Fox News Sunday: “We’ve had two very different presidents pretty much doing the same thing with regard to electronic surveillance,» Hayden said, asserting that there had been «incredible continuity.» «That seems to me to suggest that these things do work.”
When asked by host Chris Wallace how the Obama administration changed the surveillance programs, Hayden responded, “In terms of surveillance? Expanded [the programs] in volume, changed the legal grounding for them a little bit – put it more under congressional authorization rather than the president’s Article 2 powers – and added a bit more oversight. But in terms of what NSA is doing, there is incredible continuity between the two presidents. We’ve gotten more of these records over time. With the amendment to the FISA Act, in 2008, which Senator Obama finally voted for, NSA is actually empowered to do more things than I was empowered to do under President Bush’s special authorization.”
Charges of governmental overreach
Paul has announced his intentions to re-introduce his Fourth Amendment Restoration Act, which died in committee last year.
“The revelation that the NSA has secretly seized the call records of millions of Americans, without probable cause, represents an outrageous abuse of power and a violation of the Fourth Amendment to the Constitution. I have long argued that Congress must do more to restrict the executive’s expansive law enforcement powers to seize private records of law-abiding Americans that are held by a third-party,» Paul said.
“They’re looking at a billion phone calls a day,” Paul said on Fox News Sunday. “That doesn’t sound to me like a modest invasion of primary. It sounds like an extraordinary invasion of privacy.”
“I have no problem if you have probable cause, you target people who are terrorists, and you go after them,” he continued. “But we’re talking about trolling through billions of phone records…That is unconstitutional.”
Paul is currently forming a class-action suit to challenge the administration on the issue.
“I’m going to be asking all the Internet providers and all of the phone companies: ask your customers to join me in a class action lawsuit,” Paul said on Fox News Sunday. “If we get 10 million Americans saying we don’t want our phone records looked at, then maybe someone will wake up and something will change in Washington.”
However, for many, the greatest sin lies in the fact that one segment of the government can be so powerful with so little oversight. Jameel Jaffer, deputy legal director of the American Civil Liberties Union, said to the Washington Post, “I would just push back on the idea that the court has signed off on it, so why worry? This is a court that meets in secret, allows only the government to appear before it, and publishes almost none of its opinions. It has never been an effective check on government.”
Sens. Mark Udall (D-Colo.) and Ron Wyden (D-Ore.), members of the Senate Intelligence Committee, had undisclosable knowledge of the NSA program when they warned the rest of the Senate on Dec. 27 that federal law gave the agency a “back-door search loophole” raising the possibility that innocent Americans’ information would be acquired. Wyden repeatedly asked the NSA to estimate the number of Americans whose information was accidentally surveilled by the NSA. The NSA insisted that there was no way to find out. Ultimately, the inspector general told the senator in a letter that the NSA would violate Americans’ privacy simply by attempting to ascertain such a number.
“As it is written, there is nothing to prohibit the intelligence community from searching through a pile of communications, which may have been incidentally or accidentally been collected without a warrant, to deliberately search for the phone calls or e-mails of specific Americans,” Udall said.
New realities
According to confidential materials gathered by the Washington Post, PRISM is now the NSA’s leading source of raw material. The program accounts for nearly 1 in 7 intelligence reports. For an organization that has an annual intake in the trillions of communiques, that is remarkable. For their part, the CEOs of Facebook, Google and Apple have flatly denied knowing of the existence of the program.
“Facebook is not and has never been part of any program to give the US or any other government direct access to our servers,” wrote Mark Zuckerberg, CEO of Facebook, in a blog posting Friday. “We have never received a blanket request or court order from any government agency asking for information or metadata in bulk, like the one Verizon reportedly received. And if we did, we would fight it aggressively. We hadn’t even heard of PRISM before yesterday. “
“[We] provide user data to governments only in accordance with the law,” Larry Page, CEO and chief legal officer of Google, wrote. “Our legal team reviews each and every request, and frequently pushes back when requests are overly broad or don’t follow the correct process. Press reports that suggest that Google is providing open-ended access to our users’ data are false, period. Until this week’s reports, we had never heard of the broad type of order that Verizon received—an order that appears to have required them to hand over millions of users’ call records. We were very surprised to learn that such broad orders exist. Any suggestion that Google is disclosing information about our users’ Internet activity on such a scale is completely false.”
Google, in the past, has publicly disclosed the number of governmental requests it received.
The companies’ denials neither confirm nor rule out collusion with the NSA — after all, corporations are not legally obligated to disclose the legal status or day-to-day details of their operations to the public, and they may currently be under a gag order to prevent disclosure. However, the case suggests a new reality in the average American’s expectation of privacy.
Dwayne Melancon is the chief technology officer for Tripwire, a network security firm. As Melancon told Mint Press News, “The trend in electronic records collection is concerning; the move toward ‘retroactive’ wiretapping and the president’s recent statements about making it easier for government agencies to monitor ‘new types of communications’ is changing the landscape of record retention.”
“This makes it much more challenging for private organizations, like Verizon, to know what they can and can’t do when it comes to collecting and protecting customers’ personally identifiable information and communications,” Melancon continued. “Unfortunately, the result is that organizations may inadvertently get themselves into trouble because there’s no way to know for sure if they’ve done something inappropriate until after they break the rules. This is definitely not a recipe designed to preserve the privacy of electronic records.”
Andrew Storms, director for security operations for Tripwire, added, “The government opened Pandora’s box of surveillance a long time ago and it’s never going to close. Your only real protection is to encrypt the contents of your emails and voice conversations — but, for most people’s day to day lives, this is overkill. So, they should be heed the advice given to everyone on social networks like Facebook and Twitter: when on the phone, don’t say anything you wouldn’t say to your grandmother.”