Tuesday, June 26, 2012

Beyond FISA | EFF Surveillance Self-Defense Project

The NSA Surveillance Program, the Protect America Act and the FISA Amendments Act

FISA is a dangerously weak restraint on the government's power to secretly spy on Americans without probable cause of a crime, particularly since passage of the USA PATRIOT Act in 2001. Yet just as the Bush Administration was successfully lobbying Congress to expand its FISA surveillance authority through the USA PATRIOT Act, it was already building a new surveillance program at the National Security Agency (NSA) that would secretly ignore FISA's limitations and spy on Americans without first going to the FISA court.

The NSA's Surveillance Program Revealed

In a story published on December 16, 2005, the New York Times first revealed to the country that since 9/11, the NSA had regularly targeted Americans in the U.S. for electronic surveillance without first obtaining the required court orders from the FISA court. The president and his representatives quickly admitted that the Bush administration had chosen to bypass FISA as part of its "Terrorist Surveillance Program" or "TSP." The administration claimed that the TSP was narrowly targeted at international communications — i.e., communications into and out of the country — where at least one of the parties had known links to terrorist organizations. The president made the frighteningly broad claim that because of his inherent power under the Constitution to combat foreign threats as Commander-in-Chief, he had the authority to order such warrantless surveillance regardless of FISA's dictates or the Fourth Amendment.

However, the warrantless surveillance proved to be much broader than the "narrow and targeted" program that the president described. Further reporting by the Times and other papers made clear that the NSA's surveillance program went far beyond the admitted "TSP." Those news stories, along with whistleblower evidence [PDF], demonstrated that the NSA program amounted to an untargeted dragnet of millions of ordinary Americans' domestic communications and communications records. With the cooperation of the country's major telecommunications companies such as AT&T, the NSA had illegally gained backdoor access to critical telecommunications switching facilities and communications records databases around the nation. With that illegal access, the government was vacuuming up all of the data passing through those facilities — not only records of who communicated with whom and when but also the content of nearly every American's private communications — as part of a vast data-mining program. In response to the mounting evidence of a dragnet surveillance program (view a summary of all of that evidence [PDF]), EFF brought suit against AT&T in 2006 — and later, in 2008, against the government itself — on behalf of ordinary AT&T customers seeking to stop the warrantless surveillance of their telephone and Internet communications. You can find out more about the progress of those lawsuits, Hepting v. AT&T and Jewel v. NSA, at our NSA Multi-District Litigation page.

The Protect America Act of 2007, the FISA Amendments Act of 2008, and the Future of the NSA's Surveillance Program

One might expect that the revelation of a massive and illegal spying program would lead to broad bipartisan condemnation from Congress and an effort to pass legislation to provide additional protections against unbridled Executive spying. Unfortunately, that's not what happened. Instead, the Bush administration was able to use fear of terrorism to convince Congress to pass bills authorizing surveillance programs even broader than the admitted "TSP."

Claiming that critical intelligence about potential terrorist attacks would be lost unless FISA was immediately "modernized," the White House succeeded in convincing Congress to pass two laws. First was the temporary Protect America Act ("PAA") of 2007, which expired after one year. Next was the second and more-permanent FISA Amendments Act ("FAA") of 2008. Both allowed the Executive Branch to target the communications of people outside of the U.S. for surveillance without prior FISA court approval and without demonstrating any link to terrorism. Interpreted aggressively, these statutes arguably authorized the programmatic, non-particularized dragnet surveillance of any American's international communications, opening the door to virtually unchecked executive power to intercept your international emails and telephone calls.

In the meantime, although we don't think that the PAA or the FAA authorizes it, there's been no indication that the domestic dragnet, revealed by news reports and whistleblower evidence and alleged in EFF's lawsuits, has ended. As far as we know, the NSA is still plugged into key telecommunications facilities across the country and acquiring copies of all of the communications content that flows through them, while also obtaining records detailing the communications activity of millions of ordinary Americans, in violation of FISA and the Fourth Amendment.

Considering the latest changes to the law, we strongly recommend encrypting all of your international communications traffic. As for protecting the privacy of your domestic communications, the best way to combat the NSA's unchecked access to the nation's communications infrastructure — short of encrypting every single communication or avoiding using telecommunications at all — is to support EFF in its litigation and lobbying efforts to stop the spying for good.

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