Privacy SOS

“…pulling together all the data about…virtually every US citizen…”: NSA spying and the FISA Amendments Act

Jacob Appelbaum and William Binney in NYC, 20 April 2012. Photo: Aaron Muszalski/ACLUm

 "…domestically they are pulling together all the data about every, about virtually every US citizen in the country, and assembling that information, building communities that you have relationships with and knowledge about you, and what your activities are and what you're doing." — Bill Binney, NSA whistleblower, on the NSA's secret communications monitoring programs

In 2005, the New York Times published a story the paper had withheld for a year at the request of the Bush administration, presumably to avoid embarrassment and fall out before the 2004 Presidential election. I can see why. The story was huge: The NSA was secretly, warrantlessly, and illegally collecting and monitoring the private communications of US persons.

After 9/11, "the gloves came off," but we the people only learned about it years later. A scandal was born. To our great national shame, we have yet to put it to bed.

But that's not for lack of trying, at least in the civil libertarian corner. Both the ACLU and EFF have open lawsuits seeking to challenge the warrantless surveillance of US persons. And we are working the Congressional angle too (here's how you can help).

The government, on the other hand, has dug in its heels: Congress in 2008 acted to "legalize" the warrantless spying and insulate the Executive Branch and corporations from lawsuits seeking to fight it. After promising he wouldn't, then-Senator Barack Obama voted to go along with the official cover-up.

By "cover-up" I mean the 2008 FISA Amendments Act (FAA), which not only "legalized" the warrantless NSA spying program — it also immunized from lawsuits the corporations (like AT&T) that had taken part. (After all, people were bound to be pretty irritated to find that the company they had paid cold hard cash for telecom services was secretly shipping all of their private communications to the US military for who knows what purposes or fates.)

The ACLU's Michelle Richardson breaks down what FAA means, and why it's still relevant for us in 2012:

The FISA Amendments Act of 2008 (FAA) rewrote our surveillance laws, which had generally required a warrant or court order for surveillance of people in the US. 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.  It is up to the administration to decide that on its own after the fact, without any judicial review. The major requirement is that no particular person in the US should be targeted. 

The good news is that Congress had the foresight to subject this sweeping surveillance authority to a sunset provision, and it is scheduled to expire in its entirety [in December 2012]. 
While the Judiciary and Intelligence Committees have been receiving classified reports [about how the law is implemented], it’s time for a public vetting of the FAA and for meaningful amendments to better protect our privacy. Even Sens. Ron Wyden (OR) and Mark Udall (CO), with their secret briefings and cleared staff, don’t understand how this sweeping surveillance law is affecting everyday Americans. And when they asked, the DNI said it isn’t even ‘reasonably possible’ to estimate how many Americans are swept up in the NSA’s expansive dragnet.

In other words the FAA "legalized" Bush's warrantless wiretapping program, giving it a seal of approval from elected officials. We have a strategy to fix the bad law; be a part of it and let your elected officials know you oppose warrantless spying.

FAA in context

The FISA Amendments Act reauthorization battle comes at a time when people in the US are growing increasingly uncomfortable with the powers the government has granted itself over the past ten years. As technology has changed the surveillance game, mostly to tip the hand in favor of spying agencies and the police, lawmakers have basically let law enforcement sneak around largely obsolete electronic communications privacy law. Our elected leaders have thus far failed to bring hard-won and necessary privacy protections into the digital age.

The FAA fight also comes at a time when the government is cracking down on whistleblowers among its own ranks and intimidating journalists — chipping away at a few of the remaining avenues we have for getting information about how an increasingly walled-off state functions.

This weekend the New York Times read almost like a privacy horror show. An editorial on out of control government surveillance called for action on the GPS Act and Electronic Communications Privacy Act. An op-ed told us to stop calling our devices 'phones' and instead call them 'trackers'. And Eric Lichtblau and Scott Shane blew the lid off the FDA spying scandal, telling us that the federal agency had extensively monitored not only dissenting, whistleblowing scientists — who, heaven forbid, wanted to alert Congress to allegedly dangerous medical devices that the agency had approved — but also the communications of aides to Senators and Congressmen. 

One of those Senators was Chuck Grassley, who as Marcy Wheeler observed voted for the FISA Amendments Act and hasn't made much of a stink about it since, even though it does to us lowly ordinary folk the exact same thing that he objects to in the FDA spying scandal. As Wheeler put it, 

Mind you, Grassley and Van Hollen’s aides (and Van Hollen himself) were not themselves the targets of the leak investigation. The scientists were the targets. But since they were communicating with the scientists, their communication–some of it protected by law–were collected, “incidentally.” And having convinced themselves a leak had happened and a conspiracy was afoot, the FDA continued its collection program, even after the FDA’s Inspector General determined no law was broken and the Special Counsel started investigating the retaliation against the scientists.
Precisely the same thing can happen under FAA in the name of national security: people are targeted based on a suspicion, and those they communicate with, even for legitimate purposes, get sucked into the trap. That is, this is precisely the problem with the FAA, which Grassley, at least, is prepared to reup for another 4 years.
Let's not, shall we? Tell Congress to Fix FISA. 
Read more about the ACLU's challenge to warrantless spying here, and about the EFF's here.

© 2021 ACLU of Massachusetts.