Hit & Run

Your Privacy Depends on the Winning the Fight in Congress Over NSA Dragnet Spying

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NSA Spying
Electronic Frontier Foundation

At the Cato Institute's NSA spying conference a couple of weeks back, Sen. Ron Wyden (D-Ore.) warned that the pro-NSA "business as usual" crowd on Congressional intelligence committees would introduce legislation blessing the spy agency's massive domestic cybersurveillance operations. Today's Washington Post reports that NSA-enablers Senate Intelligence Committee chair Sen. Diane Feinstein and House Intelligence Committee Rep. Mike Rogers (R-Mich.) are doing just that. From the Post:

The intelligence committee leaders have not introduced their respective bills, but Feinstein has outlined the changes under consideration. They include limiting access to the call database; codifying the requirement that analysts have a "reasonable articulable suspicion" that a phone number is associated with terrorism to query the database; requiring that the FISA court promptly review each such determination; and limiting the retention period for phone records, now five years.

"This program is constitutional," Feinstein said at a hearing on the issue last month. "It is legal. .?.?. I also believe that collecting timely and actionable intelligence is critical to our nation's security."

No, it is not constitutional. As Congressional testimony by Georgetown University NSA critic Laura Donohue observed, the NSA has interpreted the "reasonable articulable suspicion" standard as permitting the agency to search through any electronic records it deems "relevant" to an investigation of foreign agents or people who the agency fears might be terrorists. Apparently, the NSA thinks that the electronic records of all Americans are somehow "relevant." Donohue noted that Foreign Intelligence Surveillance Court (FISC) had essentially surrendered to the NSA's broad interpretation of its right to spy, allowing the agency to demand that cell phone and internet companies turn over all of their customers' records: 

The statute first requires that there be "reasonable grounds" to believe that the records being sought are relevant. Although FISA (Foreign Intelligence Surveillance Act) does not define "reasonable grounds", it has been treated as the equivalent of "reasonable suspicion". This standard requires a showing of "specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant" an intrusion into an individual's right to privacy.

The FISC order requires that Verizon disclose all domestic telephone records — including those of a purely local nature. According to Verizon Communications News Center, as of last year, the company has 107.7 million wireless customers, connecting an average of 1 billion calls per day. There is simply no way that the government provided specific and articulable facts relevant to each one of those customers or calls, sufficient to establish reasonable grounds to establish their relevance. Interpreting relevance as including all records is so broad as to make the "reasonable grounds" requirement obsolete.

Donohue goes on to note that while perhaps 5 to 10 cell phone users might be agents of foreign power subject to an authorized investigation,…

…but millions simply pushes the bounds of common sense. So the telephony metadata is neither relevant nor presumptively relevant.

The government's interpretation is so broad that it establishes a dangerous precedent. If all telephony metadata is relevant to foreign intelligence investigations, then so is all email metadata, and all GPS metadata, all financial information, all banking records, all social network participation, and all Internet use.

Yes the agency's interpretation not only violates "common sense"; it also violates the Constitution's Fourth Amendment protections against unreasonable search and seizure. Nevertheless, it is this expansive interpretation that Feinstein and Miller seek to make law.

Fortunately, as the Post notes other legislators are seeking to rein in NSA spying and restore Fourth Amendment protections:

…there is the approach taken by Sen. Patrick J. Leahy (D-Vt.), the Senate Judiciary Committee chairman; Rep. F. James Sensenbrenner Jr. (R-Wis.), a former House Judiciary Committee chairman; and Sen. Ron Wyden (D-Ore.), a senior member of the Senate Intelligence Committee. They would end the mass collection of phone data by requiring the government to prove to a court that it is seeking call records relevant to either an agent of a foreign power who is the subject of a terrorism investigation or someone with a link to that agent. Such a requirement would make bulk collection impossible, the proponents say.

The legislation also would require a warrant to deliberately search for the e-mail and phone call content of Americans that is collected as part of a surveillance program targeting foreigners located overseas.

"The government has not made its case that bulk collection of domestic phone records is an effective counterterrorism tool, especially in light of the intrusion on American privacy," Leahy said at a hearing this month.

The New York Times' editorial board today has also endorsed the new legislation limiting NSA domestic spying:

Fortunately, members of Congress have been more aggressive in responding to two broad disclosures. One, that both the Obama and George W. Bush administrations misinterpreted the Patriot Act to permit the collection of metadata on phone calls, emails and text messages of all Americans, whether they were international or domestic. And, second, that the 2008 amendments to the Foreign Intelligence Surveillance Act were being stretched to excuse the routine collection of data from 60 million telephone calls in Spain and 70 million in France over two 30-day periods.

Legislation scheduled to be introduced on Tuesday by Patrick Leahy, Democrat of Vermont, the chairman of the Senate Judiciary Committee, and Representative Jim Sensenbrenner, Republican of Wisconsin, would end the bulk collection of Americans' communications data.

Both sides apparently want to create a special advocate who would argue on behalf of Americans' privacy rights before the FISC. Much depends on the details of how this office would be organized. It is likely that the NSA-enablers Feinstein and Miller would restrict the resources available to the privacy advocate for investigating NSA activities thus severely limit the advocate's ability to effectually challenge the NSA's claims.

Finally, I want to say, once again, Thank You, Edward Snowden.