By
The National Security Agency’s recently revealed surveillance programs
undermine the purpose of the Foreign Intelligence Surveillance Act,
which was established to prevent this kind of overreach. They violate
the Fourth Amendment’s guarantee against unreasonable search and
seizure. And they underscore the dangers of growing executive power.
The intelligence community has a history of overreaching in the
name of national security. In the mid-1970s, it came to light that,
since the 1940s, the NSA had been collecting international telegraphic
traffic from companies, in the process obtaining millions of Americans’
telegrams that were unrelated to foreign targets. From 1940 to 1973, the
CIA and the FBI engaged in covert mail-opening programs that violated
laws prohibiting the interception or opening of mail. The agencies also
conducted warrantless “surreptitious entries,” breaking into targets’
offices and homes to photocopy or steal business records and personal
documents. The Army Security Agency intercepted domestic radio
communications. And the Army’s CONUS program placed more than 100,000
people under surveillance, including lawmakers and civil rights leaders.
After an extensive investigation of the agencies’ actions,
Congress passed the 1978 Foreign Intelligence Surveillance Act (FISA) to
limit sweeping collection of intelligence and create rigorous
oversight. But 35 years later, the NSA is using this law and its
subsequent amendments as legal grounds to run even more invasive
programs than those that gave rise to the statute.
Qe’ve learned that in April, the Foreign Intelligence Surveillance Court (FISC) ordered
Verizon to provide information on calls made by each subscriber over a
three-month period. Over the past seven years, similar orders have been
served continuously on AT&T, Sprint and other telecommunications
providers.
Another program, PRISM, disclosed by the Guardian and The Washington Post, allows the NSA and the FBI to obtain online data including e-mails, photographs, documents and connection logs. The information that can be assembled about any one person — much less organizations, social networks and entire communities — is staggering: What we do, think and believe.
The government defends the programs’ legality, saying they comply with FISA and its amendments. It may be right, but only because FISA has ceased to provide a meaningful constraint.
Under the traditional FISA, if the government wants to conduct electronic surveillance, it must make a classified application to a special court, identitying or describing the target. It must demonstrate probable cause that the target is a foreign power or an agent thereof, and that the facilities to be monitored will be used by the target.
In 2008,
Congress added section 702 to the statute, allowing the government to
use electronic surveillance to collect foreign intelligence on non-U.S.
persons it reasonably believes are abroad, without a court order for
each target. A U.S. citizen may not intentionally be targeted.
To the extent that
the FISC sanctioned PRISM, it may be consistent with the law. But it is
disingenuous to suggest that millions of Americans’ e-mails, photographs
and documents are “incidental” to an investigation targeting foreigners
overseas.
The telephony metadata program raises similar concerns. FISA
did not originally envision the government accessing records. Following
the 1995 Oklahoma City bombing, Congress allowed applications for
obtaining records from certain kinds of businesses. In 2001, lawmakers
further expanded FISA to give the government access to any business or
personal records. Under section 215 of the Patriot Act, the government
no longer has to prove that the target is a foreign power. It need only
state that the records are sought as part of an investigation to protect
against terrorism or clandestine intelligence.
This means that FISA can now be used to gather records
concerning individuals who are neither the target of any investigation
nor an agent of a foreign power. Entire databases — such as telephony
metadata — can be obtained, as long as an authorized investigation
exists.
Congress didn’t pass Section 215 to allow for the
wholesale collection of information. As Rep. F. James Sensenbrenner Jr.
(R-Wis.), who helped draft the statute, wrote in the Guardian:
“Congress intended to allow the intelligence communities to access
targeted information for specific investigations. How can every call
that every American makes or receives be relevant to a specific
investigation?”
As a constitutional matter, the Supreme Court has
long held that, where an individual has a reasonable expectation of
privacy, search and seizure may occur only once the government has
obtained a warrant, supported by probable cause and issued by a judge.
The warrant must specify the places to be searched and items to be
seized.
There are exceptions to the warrant requirement. In 1979
the court held that the use of a pen register to record numbers dialed
from someone’s home was not a search. The court suggested that people
who disclose their communications to others assume the risk that law
enforcement may obtain the information.
More than three decades
later, digitization and the explosion of social-network technology have
changed the calculus. In the ordinary course of life, third parties
obtain massive amounts of information about us that, when analyzed, have
much deeper implications for our privacy than before.
As for
Section 702 of FISA, the Supreme Court has held that the Fourth
Amendment does not protect foreigners from searches conducted abroad.
But it has never recognized a foreign intelligence exception to the
warrant requirement when foreign-targeted searches result in the
collection of vast stores of citizens’ communications.
Americans
reasonably expect that their movements, communications and decisions
will not be recorded and analyzed by the government. A majority of the
Supreme Court seems to agree. Last year, the court considered a case
involving 28-day GPS surveillance.
Justice Samuel Alito suggested that in most criminal investigations,
long-term monitoring “impinges on expectations of privacy.” Justice
Sonia Sotomayor recognized that following a person’s movements “reflects
a wealth of detail about her familial, political, professional,
religious, and sexual associations.”
The FISC is supposed to
operate as a check. But it is a secret court, notorious for its low rate
of denial. From 1979 to 2002, it did not reject a single application.
Over the past five years, out of nearly 8,600 applications, only two
have been denied.
Congress has an opportunity to create more
effective checks on executive power. It could withdraw Sections 215 and
702 and introduce new measures to regulate intelligence collection and
analysis. There are many options.
James Madison put it best: “In
framing a government which is to be administered by men over men, the
great difficulty lies in this: you must first enable the government to
control the governed; and in the next place oblige it to control
itself.”
3 comments:
"How can a court rule the US government is violating the Constitution in its domestic spying & the ruling is secret?"
http://actwellyourpart.blogspot.com/2013/06/secret-laws-secret-court-rulings.html
Ed banned me too. Don't know why.
Wolly.
I'll still follow you here.
I don't know what I did wrong.
That's awful. I'll see what I can find out about it. Please keep in touch. SoRo
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