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Leaked Surveillance Programs Reveal Large-Scale Data Collection

Commentary Notes First Amendment
Leaked Surveillance Programs Reveal Large-Scale Data Collection By Michelle Sohn – Edited by Katie Mullen [caption id="attachment_3359" align="alignleft" width="150"] Photo By: darkuncle - CC BY 2.0[/caption] Last week, the Guardian revealed two top-secret U.S. programs—Verizon metadata collection and PRISM—that allow the National Security Agency (“NSA”) to conduct domestic surveillance on a massive and unprecedented scale. The first program was conducted with an order from the U.S. Foreign Intelligence Surveillance Court. The court order required Verizon to provide the NSA with all “telephony metadata” created by Verizon for communications within the U.S. as well as between the U.S. and abroad. The order specified a three month period, but could have been one of several similar orders. Metadata includes the phone numbers, location, and duration of Verizon users’ calls, but not the actual content of conversations. The order also prohibited Verizon from disclosing any information about this program or the order’s existence. The second program, PRISM, allows the government direct access to participating companies’ servers. A wide range of data can be culled from the servers, including email, video and voice chat, and file transfers. Major companies allegedly participating in Prism include Yahoo, Facebook, Skype, and Google. Spokespersons from these companies have denied participation. PRISM can target user communications outside the U.S. and communications involving people outside the U.S. NPR summarized an interview on the two surveillance programs with former NSA director, General Michael Hayden, who largely praised the program as “an accurate reflection of balancing our security and our privacy.” The New Yorker criticized the court-ordered metadata collection program, declaring, “The problem, then, is not just secrecy, but meta-secrecy. The government let the public think that certain words mean one thing, while operating on the idea that they mean another.” Congress has initiated new oversight proceedings on the programs. In response to the leaks, President Obama characterized the programs as both legal and limited. He argued that these “modest encroachments on privacy” are worthwhile for the protection of the nation. “Nobody is listening to your telephone calls,” he said. “That’s not what this program’s about.” James R. Clapper, the Director of National Intelligence, also defended the programs and described a number of safeguards in place to protect the privacy of citizens, stating in a press release:
By order of the FISC, the Government is prohibited from indiscriminately sifting through the telephony metadata acquired under the program. All information that is acquired under this program is subject to strict, court-imposed restrictions on review and handling. The court only allows the data to be queried when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization.
He also stated that members of Congress had been fully briefed on the program and that it had been authorized by every branch of government. The legal justification for the Verizon metadata collection program is section 215 of the Patriot Act, which amended a provision of the Foreign Intelligence Surveillance Act (“FISA”) 50 U.S.C. § 1861 (2012), to allow the government to request a secret court order requiring third parties to provide their “business records” for foreign intelligence investigations. PRISM is authorized by section 702 of the 2008 FISA Amendments Act, 50 U.S.C. 1881 (2012). These amendments allow the government to obtain sweeping records of user data provided that it has a “reasonable belief” that a target is located outside the U.S. The American Civil Liberties Union (“ACLU”) has filed a lawsuit challenging the constitutionality of the metadata collection, the Washington Post reported. The ACLU asked the court to order an end to the surveillance, to require the agencies involved to purge all records, and to declare the program unconstitutional, writing:
The practice is akin to snatching every American’s address book—with annotations detailing whom we spoke to, when we talked, for how long, and from where. It gives the government a comprehensive record of our associations and public movements, revealing a wealth of detail about our familial, political, professional, religious, and intimate associations.
Complaint at 1, American Civil Liberties Union v. Clapper (S.D.N.Y. filed Jun. 11, 2013) (No. 13 Civ. 3994) Complaint hosted by The Economist has also pointed to major ramifications of the programs, saying they reveal our failure to construct legal protections for online privacy, not just from the government, but from anyone at all.