Privacy SOS

Government admits NSA violated our Fourth Amendment rights, but won’t say how

The sprawling, secretive intelligence bureaucracy has admitted that it violated the Fourth Amendment rights of some unspecified number of US persons — once.

The Office of the Director of National Intelligence (ODNI), the big boss of the nation's security apparatus, on Friday 20 July 2012 allowed privacy crusader and Senate Select Intelligence Committee member Senator Ron Wyden to tell the public that the Foreign Intelligence Surveillance Court (FISC) found "on at least one occasion" that "some collection" of information under the FISA Amendments Act "was unreasonable under the Fourth Amendment."

What that most likely means is that the government admits that US agencies retained data about US persons for longer than was reasonably necessary. What this disclosure does not provide is any context that might help ordinary people understand what it means. We can only assume this exclusion of context was intentional.

In 2008, Congress passed the FISA Amendments Act to allow the NSA to continue Bush's warrantless spying program, enabling the agency to collect private communications with very little restriction. All the agency needs to do is get one court order from the FISC and it can collect data on hundreds of millions of people — every single person in the country — for a year.

As the ACLU's Michelle Richardson puts it, "Under the FAA, the government can get a year-long programmatic court order for general bulk collection of Americans’ international communications without specifying who will be tapped."

The ODNI last Friday allowed Wyden to tell the public three very specific statements (and nothing more!), suggesting that the state security apparatus retained some of this information for longer than was reasonably necessary, violating the Fourth Amendment privacy interests of some unspecified number of Americans. That number could be huge because of how broadly the FAA allows the government to spy on us. 

So there we have it. The state security apparatus admits that it violated the Fourth Amendment rights of some unspecified number of people — how many we will likely never know. We are also prevented from knowing exactly what happened or why, and nor will any agency tell us whether or how the persons responsible for the violation have been punished. 

Mathematics and the Utah data center

NSA whistleblower Bill Binney recently said that the NSA is compiling dossiers on millions of US citizens — most people in the country, he said, are targets of the government's data collection. 

One of the reasons Binney is convinced that the NSA is collecting and storing all of the digital communications it can get its hands on is because it is constructing a massive data warehouse in the Utah desert. There's no way the agency would need that much space if it wasn't keeping everything, he tells us. Binney calls our predicament a "turnkey totalitarian state" because all the government would have to do to maintain total social control is start reading what he says it has been collecting for years.

In light of that mathematical calculation, and in light of what the FAA statute allows the NSA to do — spy on potentially millions of US persons with one court order per year — it is possible that the "one" violation of the Fourth Amendment Wyden addresses here implicates many millions of US persons' data.

The ODNI says that the government has fixed the problem, and that this violation was a one-off, but Senator Wyden seems to be suggesting that the problem is endemic. That's why he is blocking automatic reauthorization of the FAA, and why he proposed an amendment that would have barred the government “from searching through these communications in an effort to find the phone calls or emails of a particular American, unless the government has obtained a warrant or emergency authorization permitting surveillance of that American.” Shockingly, that amendment failed. The fact that he proposed it suggests he has reason to believe that the government is searching through our communications without warrants.

More broadly, Senator Wyden has told us that he thinks the government's surveillance program violates the spirit of the law, if not its letter. How could that be?

Julian Sanchez writes:

Binney argues that when NSA officials have denied they are engaged in broad and indiscriminate “interception” of Americans’ communications, they are using that term “in a very narrow way,” analogous to the technical definition of “collection” [], not counting an e-mail or call as “intercepted” until it has been reviewed by human eyes. On this theory, the entire burden of satisfying the Fourth Amendment’s requirement of “reasonableness” is borne by the “minimization procedures” governing the use of the massive Pinwale database. On this theory, the constitutional “search” does not occur when all these billions of calls and emails are actually intercepted (in the ordinary sense) and recorded by the NSA, but only when the database is queried. 

If it's true that this is the standard by which the ODNI and the Foreign Intelligence Surveillance Court are measuring a constitutional violation, Senator Wyden is right: we are in big trouble.

The only option left for us little people is to force our representatives to fix FISA.

Even if the NSA isn't reading your sexts and Google chats now, it appears to be laying the groundwork for some unknown executive to use that information against you in ten or twenty years. 

Let's stop that from happening.

© 2021 ACLU of Massachusetts.