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On the legality of the NSA’s alleged snooping

Posted by James Hammerton @ 7:29 pm on 26 July, 2013.
Categories privacy and surveillance, the database state, accountability, US politics.
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One question regarding the allegations that the NSA has been engaged in mass surveillance of people’s communications is to what extent is the alleged snooping legal?

With regards to the order requiring Verizon to hand over the metadata for millions of calls to the NSA, the US government has actively defended the policy (including President Obama himself), thus confirming the alleged snooping was occurring.

The Register reports:

A senior White House official has said that the US National Security Agency is perfectly correct to be downloading the mobile metadata every US caller, and politicians on both sides of the political divide have rallied to defend the practice.

The NSA’s policy – revealed on Wednesday in a leaked court order that the anonymous (no, not that Anonymous) source declined to confirm was real – was described as “a critical tool in protecting the nation from terrorist threats to the United States.”

“It allows counter-terrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities,” the source said, “particularly people located inside the United States.”

Verizon’s general counsel Randy Milch said his company “continually takes steps to safeguard customer privacy,” but that it must comply with government regulations. In a blog post he pointed out that the leaked document shows the order forbids it to discuss the issue and safeguards the content of messages.

The article goes on to state:

The legality of the NSA actions is provided by Section 215 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act). The 363-page document was introduced on October 21 2001 and enacted into law three days later.

This allows such monitoring while not allowing the content of communications to be monitored in the same way – that kind of spying currently needs a court order.

Note that the USA PATRIOT Act amended the Foreign Intelligence Surveillance Act. Also the Register articles reports that the Verizon case is part of an ongoing operation running for 7 years, lending credence to the allegation of ongoing harvesting of metadata:

The actions of the NSA were “lawful,” said Senator Dianne Feinstein (D-CA), chair of the Senate Select Committee on Intelligence, the Washington Post reports. She said the leaked court order appears to be “the exact three-month renewal” of a seven-year operation.

However, that deals with the collection of metadata, whereas PRISM allegedly includes the content of communications. Again the US government response confirms the NSA has access to data from these companies.

Regarding the legality of PRISM, the Guardian published an article explaining how the Foreign Intelligence Surveillance Act (FISA), as amended in 2008, ends up permitting such surveillance. To summarise:

  • Originally, to listen in on someone’s phone calls or intercept emails, FISA required an individualised warrant with evidence showing probable cause that the target was an agent of a foreign power or terrorist organisation.
  • FISA was amended in 2008 to legalise the earlier warrantless surveillance that had been conducted in secret by the Bush administration. An individualised warrant is now only required if the target is a US citizen or the communications occur entirely within the US.
  • The amended FISA enables warrantless surveillance of the communications of anyone reasonably believed to be outside the US, with no requirement for there to be suspicion of their involvement on terrorism or any other criminal activity. Thus US citizens/residents communicating with people believed to be outside the US could find their communications under surveillance via this system.
  • Thus the claims from US government representatives that the NSA is not listening in on US citizens’ phone calls or reading US citizens’ emails are misleading if not outright false. Also it appears that those of us who are not US citizens and live elsewhere than the US can be surveilled at will by the NSA under this law.
  • The main oversight mechanism is this: The NSA draws up its general guidelines each year for deciding how to do this surveillance, which the FISA Court then has to approve, but thereafter the NSA is left to carry out it surveillance under those guidelines at its own discretion. Note that the FISA Court carries out its activities mostly in secret.
  • The only other oversight comes in the form of periodic reviews by the Dept Of Justice and Director of National Intelligence.

This leaves the question of whether the amended FISA is itself lawful/constitutional. However every attempt to contest the lawfulness of the amended FISA in light of the US constitution has been thwarted by the DOJ via claims of lack of standing, secrecy or immunity from prosecution.

In short this system seems to allow a lot of discretion, with a cover of secrecy more than sufficient to allow the levels of surveillance claimed in the Guardian’s leaks. Further the US govt has confirmed that they get surveillance data from the companies involved.

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