June 27, 2013
The Criminal N.S.A.
By
JENNIFER STISA GRANICK and CHRISTOPHER JON SPRIGMAN
THE twin revelations that telecom carriers have been secretly giving the
National Security Agency information about Americans’ phone calls, and
that the N.S.A. has been capturing e-mail and other private
communications from Internet companies as part of a secret program
called Prism, have not enraged most Americans. Lulled, perhaps, by the
Obama administration’s claims that these
“modest encroachments on privacy” were approved by Congress and by federal judges, public opinion quickly migrated from shock to “meh.”
It didn’t help that Congressional watchdogs — with a few exceptions,
like Senator Rand Paul, Republican of Kentucky — have accepted the White
House’s claims of legality. The leaders of the Senate Intelligence
Committee, Dianne Feinstein, Democrat of California, and Saxby
Chambliss, Republican of Georgia, have called the surveillance legal. So
have liberal-leaning commentators like
Hendrik Hertzberg and
David Ignatius.
This view is wrong — and not only, or even mainly, because of the
privacy issues raised by the American Civil Liberties Union and other
critics. The two programs violate both the letter and the spirit of
federal law. No statute explicitly authorizes mass surveillance. Through
a series of legal contortions, the Obama administration has argued that
Congress, since 9/11, intended to implicitly authorize mass
surveillance. But this strategy mostly consists of wordplay,
fear-mongering and a highly selective reading of the law. Americans
deserve better from the White House — and from President Obama, who has
seemingly forgotten the constitutional law he once taught.
The administration has defended each of the two secret programs. Let’s examine them in turn.
Edward J. Snowden, the former N.S.A. contract employee and
whistle-blower, has provided evidence that the government has phone
record metadata on all Verizon customers, and probably on every
American, going back seven years. This metadata is extremely revealing;
investigators mining it might be able to infer whether we have an
illness or an addiction, what our religious affiliations and political
activities are, and so on.
The law under which the government collected this data, Section 215 of
the Patriot Act, allows the F.B.I. to obtain court orders demanding that
a person or company produce “tangible things,” upon showing reasonable
grounds that the things sought are “relevant” to an authorized foreign
intelligence investigation. The F.B.I. does not need to demonstrate
probable cause that a crime has been committed, or any connection to
terrorism.
Even in the fearful time when the Patriot Act was enacted, in October
2001, lawmakers never contemplated that Section 215 would be used for
phone metadata, or for mass surveillance of any sort. Representative
F. James Sensenbrenner Jr.,
a Wisconsin Republican and one of the architects of the Patriot Act,
and a man not known as a civil libertarian, has said that “Congress
intended to allow the intelligence communities to access targeted
information for specific investigations.” The N.S.A.’s demand for
information about every American’s phone calls isn’t “targeted” at all —
it’s a dragnet.
“How can every call that every American makes or
receives be relevant to a specific investigation?” Mr. Sensenbrenner has
asked. The answer is simple: It’s not.
The government claims that under Section 215 it may seize all of our
phone call information now because it might conceivably be relevant to
an investigation at some later date, even if there is no particular
reason to believe that any but a tiny fraction of the data collected
might possibly be suspicious. That is a shockingly flimsy argument — any
data might be “relevant” to an investigation eventually, if by
“eventually” you mean “sometime before the end of time.” If all data is
“relevant,” it makes a mockery of the already shaky concept of
relevance.
Let’s turn to Prism: the streamlined, electronic seizure of
communications from Internet companies. In combination with what we have
already learned about the N.S.A.’s access to telecommunications and
Internet infrastructure, Prism is further proof that the agency is
collecting vast amounts of e-mails and other messages — including
communications to, from and between Americans.
The government justifies Prism under the FISA Amendments Act of 2008.
Section 1881a of the act gave the president broad authority to conduct
warrantless electronic surveillance. If the attorney general and the
director of national intelligence certify that the purpose of the
monitoring is to collect foreign intelligence information about any
nonAmerican individual or entity not known to be in the United States,
the Foreign Intelligence Surveillance Court can require companies to
provide access to Americans’ international communications. The court
does not approve the target or the facilities to be monitored, nor does
it assess whether the government is doing enough to minimize the
intrusion, correct for collection mistakes and protect privacy. Once the
court issues a surveillance order, the government can issue top-secret
directives to Internet companies like Google and Facebook to turn over
calls, e-mails, video and voice chats, photos, voiceover IP calls (like
Skype) and social networking information.
Like the Patriot Act, the FISA Amendments Act gives the government very
broad surveillance authority. And yet the Prism program appears to
outstrip that authority. In particular, the government “may not
intentionally acquire any communication as to which the sender and all
intended recipients are known at the time of the acquisition to be
located in the United States.”
The government knows that it regularly obtains Americans’ protected
communications. The Washington Post reported that Prism is designed to
produce at least 51 percent confidence in a target’s “foreignness” — as
John Oliver of “The Daily Show” put it, “a coin flip plus 1 percent.” By
turning a blind eye to the fact that 49-plus percent of the
communications might be purely among Americans, the N.S.A. has
intentionally acquired information it is not allowed to have, even under
the terrifyingly broad auspices of the FISA Amendments Act.
How could vacuuming up Americans’ communications conform with this legal
limitation? Well, as James R. Clapper Jr., the director of national
intelligence, told Andrea Mitchell of NBC, the N.S.A. uses the word
“acquire” only when it pulls information out of its gigantic database of
communications and not when it first intercepts and stores the
information.
If there’s a law against torturing the English language, James Clapper is in real trouble.
The administration hides the extent of its “incidental” surveillance of
Americans behind fuzzy language. When Congress reauthorized the law at
the end of 2012, legislators said Americans had nothing to worry about
because the surveillance could not “target” American citizens or
permanent residents. Mr. Clapper offered the same assurances. Based on
these statements, an ordinary citizen might think the N.S.A. cannot read
Americans’ e-mails or online chats under the F.A.A. But that is a
government fed misunderstanding.
A “target” under the act is a person or entity the government wants
information on — not the people the government is trying to listen to.
It’s actually O.K. under the act to grab Americans’ messages so long as
they are communicating with the target, or anyone who is not in the
United States.
Leave aside the Patriot Act and FISA Amendments Act for a moment, and turn to the Constitution.
The Fourth Amendment obliges the government to demonstrate probable
cause before conducting invasive surveillance. There is simply no
precedent under the Constitution for the government’s seizing such vast
amounts of revealing data on innocent Americans’ communications.
The government has made a mockery of that protection by relying on
select Supreme Court cases, decided before the era of the public
Internet and cellphones, to argue that citizens have no expectation of
privacy in either phone metadata or in e-mails or other private
electronic messages that it stores with third parties.
This hairsplitting is inimical to privacy and contrary to what at least
five justices ruled just last year in a case called United States v.
Jones. One of the most conservative justices on the Court, Samuel A.
Alito Jr., wrote that where even public information about individuals is
monitored over the long term, at some point, government crosses a line
and must comply with the protections of the Fourth Amendment. That
principle is, if anything, even more true for Americans’ sensitive
nonpublic information like phone metadata and social networking
activity.
We may never know all the details of the mass surveillance programs, but
we know this: The administration has justified them through abuse of
language, intentional evasion of statutory protections, secret,
unreviewable investigative procedures and constitutional arguments that
make a mockery of the government’s professed concern with protecting
Americans’ privacy. It’s time to call the N.S.A.’s mass surveillance
programs what they are: criminal.
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