Privacy SOS

How new FBI powers to look through NSA intercepts will exacerbate mass incarceration

The wall separating “foreign” intelligence operations from domestic criminal investigations has finally, fully collapsed. The FBI now plans to act on a rule change initiated by the Bush administration and finally massaged into actionable policy by Obama: Soon, domestic law enforcement agencies like the FBI will be able to search through communications collected under the mysterious authority of executive order 12333. Now, FBI agents can query the NSA’s database of Americans’ international communications, collected without warrants pursuant to Section 702 of the 2008 FISA Amendments Act. That law put congress’ stamp of approval on the Bush administration’s warrantless wiretapping program, which was widely denounced as totalitarian when the New York Times‘ James Risen exposed it to the world in 2005.

The New York Times reports:

Until now, National Security Agency analysts have filtered the surveillance information for the rest of the government. They search and evaluate the information and pass only the portions of phone calls or email that they decide is pertinent on to colleagues at the Central Intelligence Agency, the Federal Bureau of Investigation and other agencies. And before doing so, the N.S.A. takes steps to mask the names and any irrelevant information about innocent Americans.

The new system would permit analysts at other intelligence agencies to obtain direct access to raw information from the N.S.A.’s surveillance to evaluate for themselves.

What does this rule change mean for you? In short, domestic law enforcement officials will soon have access to even larger troves of American communications, obtained without warrants, that they can use to put people in cages. If the rules governing FBI access to 12333 surveillance are like those that cover 702 collection, FBI agents won’t need to have any “national security” related reason to plug your name, email address, phone number, or other “selector” into the NSA’s gargantuan data trove. They could simply poke around in your private information in the course of totally routine investigations. And if they find something that suggests, say, involvement in illegal drug activity, they could send that information to local or state police. That means information the NSA collects for purposes of so-called “national security” will be used by police to lock up ordinary Americans for routine crimes. And we don’t have to guess who’s going to suffer this unconstitutional indignity the most brutally. It’ll be Black, Brown, poor, immigrant, Muslim, and dissident Americans: the same people who are always targeted by law enforcement for extra “special” attention.

You might be asking yourself: How on earth could a law like Section 702 of the FISA Amendments Act (FAA), which enables the government to wiretap our communications without warrants, be constitutional? In our view, at the ACLU, it’s not. And naturally, our attorneys have tried to convince courts of the same. But unfortunately those legal challenges have been met with obstruction at the highest levels of government. In 2013, this obstruction culminated in a disastrous Supreme Court ruling holding that our clients in Amnesty v. Clapper, our lawsuit challenging warrantless wiretapping under FAA, didn’t have standing to bring the claim. The court agreed with the government on the standing issue, meaning that in order for someone to successfully challenge the constitutionality of what is on its face a blatantly unconstitutional law granting Orwellian powers to the government, they must have proof not only that the government spied on their communications without a warrant, but that it did so under the authority of this particular statute. In order to prove something like this, we’d need another Snowden to leak us the records. Otherwise, we’re out of luck.

The sharing of information collected under executive order 12333 authority raises even more significant concerns. That’s because we know so little about how the government is using or interpreting that authority. 

What can we do about this horrible state of affairs? Two things: Tell congress to repeal Section 702, as they almost did in the wake of the Snowden revelations, and encrypt your communications. Start doing the latter by installing Signal on your iPhone or Android right now, and using it every day for all your phone and text communications.

We need both political and technological solutions to this problem. We can’t give up, because in a nation with the largest prison population on earth and extreme racial bias at every stage of the criminal punishment system, there’s much too much on the line for so many of our friends, family members, neighbors, and yes, ourselves.

This post was corrected to reflect the distinction between the expansion of access to 12333 data and the new information about existing 702 information sharing.

© 2017 ACLU of Massachusetts.