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In 2009 Christopher Soghoian discovered that both Verizon and Yahoo! were afraid their users would learn the extent of their collaboration with the NSA. A letter written by Yahoo! lawyers complained that publicizing such facts would likely “shame” the company and “shock” its customers. In 2010 Soghoian, now with the American Civil Liberties Union, told me telecom and Internet providers “all have special departments, many open 24 hours per day, whose staff do nothing but respond to legal requests. Their entire purpose is to facilitate the disclosure of their customers’ records to law enforcement and intelligence agencies.”
3. Laws against revealing information about secret NSA programs have been on the books since 1917—before most intelligence agencies even existed.
In June, American Enterprise Institute fellow Marc A. Thiessen inadvertently admitted his own participation in a criminal enterprise by writing a Washington Post column declaring that, according to his reading of federal law, reporting Snowden’s revelations is a crime. Thiessen writes a column for the Post, one of the first newspapers to publish Snowden’s leaks.
The law Thiessen had in mind is 18 USC § 798, which applies to anyone who “knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes…any classified information…concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or concerning the communication intelligence activities of the United States or any foreign government.” Offenders face penalties of up to 10 years in prison.
The law does give would-be communicators a bye if their revelations of intelligence gathering methods were presented to a committee of Congress “upon lawful demand.” Not that Congress is likely to demand such a thing.
4. NSA watchers have long known about massive data-hoovering operations.
Even before the revelations about Prism, NSA chronicler James Bamford reported at length in his 2009 book The Shadow Factory that the agency has its own room at a huge AT&T facility in San Francisco through which enormous amounts of domestic electronic communications are funneled. Similar systems were in place at other AT&T hubs, likely grabbing other carriers’ traffic as well.
As Bamford wrote four years ago, the NSA already had decided to “create a database of every call ever made” in the country. Unable “to show probable cause, or even a reasonable suspicion…the NSA was on an expensive fishing expedition,” he wrote. “People became NSA targets simply because they happened to call a target.” NSA then began tossing many of these domestic numbers as “unsolicited leads” to the FBI so it could directly tap domestic calls. As Bamford reports, this wasted a great deal of FBI time, to who knows what detrimental effect.
Bamford concluded that as early as 2008 anyone paying attention knew that “the idea of communications privacy in the United States has literally become a joke.” Pranksters in the Billboard Liberation Front altered an AT&T billboard in San Francisco that year to read: “AT&T works in more places, like NSA HEADQUARTERS.”
5. The Fourth Amendment is violated daily by both national security and domestic law enforcement agencies.
In a series of decisions beginning in the early 1970s, the Supreme Court declared that people have no reasonable expectation of privacy in data they voluntarily disclose to third parties, meaning that such information is not covered by the Fourth Amendment and has only as much protection as legislators decide to give it. Decisions aimed at facilitating the war on drugs have further eroded the Fourth Amendment’s guarantee against unreasonable searches and seizures by, among other things, declaring that even if your outdoor property is fenced and marked “no trespassing” police can still search it for drugs. The rampant use of unreliable drug-sniffing dogs to trigger probable cause has degraded constitutional protections still further.
These reminders of what we already should have known about government surveillance are not meant to denigrate the importance of Snowden’s revelations. But those who care about privacy issues should contemplate what was already in the public record and consider how fragile public awareness can be.
Knowledge available to the alert can fade all too quickly from the body of information that forms most Americans’ views of the world. One of the challenges now is to ensure that what Snowden has told or reminded us about the NSA and the world of surveillance in which it is enmeshed does not fade from the nation’s short memory.
Three Reasons You Should Be Worried About Government Surveillance, Even If You Have ‘Nothing to Hide’