Privacy SOS

When the NSA really wants to spy on you, it does—and the FBI benefits

Despite Keith Alexander's public claims to the contrary, Edward Snowden indeed had access to raw intercept material as a Booz Allen employee in Hawaii. Concluding a four month investigation based on material provided by Snowden, the Washington Post has published a bombshell story illustrating that the NSA spies on about ten times as many people as it "targets".

The information collected on non-targets, including baby photos and love letters, is retained and made available to NSA "partners"—including the FBI. Any information collected "incidentally" through the PRISM or "upstream" collection programs can be used against US citizens if authorities discover evidence of criminal activity through the illegal surveillance. ('Upstream collection' is a euphemism for the NSA attaching a vacuum to the pipes that carry the world's internet traffic.)

One of the most disturbing revelations in the Post story is the degree to which NSA supervisors encourage analysts to assume people are not US persons, enabling broader surveillance. The Post:

When NSA and allied analysts really want to target an account, their concern for U.S. privacy diminishes. The rationales they use to judge foreignness sometimes stretch legal rules or well-known technical facts to the breaking point.

In their classified internal communications, colleagues and supervisors often remind the analysts that PRISM and Upstream collection have a “lower threshold for foreignness ‘standard of proof’ ” than a traditional surveillance warrant from a FISA judge, requiring only a “reasonable belief” and not probable cause.

One analyst rests her claim that a target is foreign on the fact that his e-mails are written in a foreign language, a quality shared by tens of millions of Americans. Others are allowed to presume that anyone on the chat “buddy list” of a known foreign national is also foreign.

When NSA wants to legally spy on Americans, it must—like any other agency—obtain a probable cause warrant. But silly things like warrants don't really matter in NSA-world. The records examined by the Post show that when those warrants expire, NSA analysts are sometimes encouraged to continue spying on the US target, using PRISM or upstream collection methods, which allow for targeting under a much lower legal standard.

If the NSA wants to spy on you, it doesn't matter whether they get a warrant or not; it's going to happen.

There's some detail in the Post piece about the kinds of information NSA collects and retains about "non-targets". These data include sexy photographs, baby pictures, love letters, tales of financial and psychological hardship, and the other messy details of private life.

Keep in mind as you read the full report that the FBI has unlimited access to all of the communications NSA collects through the Section 702 program. The FBI can use that information to build a criminal case against someone in the United States. Even scarier, the feds could simply pass on information about drug dealing or other illegal activity to local police, who would pretend they identified you through some other, less dystopian means—a tactic called parallel construction.

Also remember the FBI's history, as you think about the broad access its agents are granted into our private lives. This is the organization that operated a dissident monitoring and repression program called COINTELPRO, directed at black Americans, antiwar organizers, and Vietnam war refusers. The very same FBI was led for decades by a man who considered the Black Panther's breakfast program a grave threat to national security, and was later involved in the Chicago Police Department's murder of Black Panther Fred Hampton.

Some people want to believe the FBI has fundamentally changed since those bad old days. But to this day FBI headquarters bears the name of the man responsible for those crimes: J. Edgar Hoover.

And today, in part because of its limitless access to NSA collected surveillance on millions of innocent people, the FBI has more power and reach than ever before.

© 2021 ACLU of Massachusetts.