United States: "I’m Shocked—Shocked—To Find That Surveillance Is Going On In Here."

Last Updated: June 17 2013
Article by Michael A. Vatis

It seems we can't go a day without another bombshell in what we can now call the "Snowden Affair." Many people are calling Edward Snowden a "whistleblower" for leaking two classified intelligence programs. But that term is usually reserved for someone who reveals government lies, law-breaking, or malfeasance. What Snowden revealed, though, are government activities that, based on what's been reported, appear to be lawful, at least in the sense of being consistent with laws enacted by our elected representatives. One can legitimately argue about whether the two programs are effective, whether the benefits to security are worth the cost to privacy, and whether there is sufficient congressional and judicial oversight of such programs. One can also argue about whether such programs violate the Fourth Amendment. But there does not seem to be any reasonable doubt that the programs are consistent with the United States Code. Nor, really, should these revelations surprise anyone. So the member of Congress, reporter, or civil libertarian who professes shock that these programs exist hasn't been paying close attention to developments in national security law the last eight years. Or, like Captain Renault in Casablanca, he's just turned a blind eye to them.

Last week I discussed Snowden's first leak, which involved the Hoovering of massive amounts of telephone "metadata" from US telecoms, including metadata about local calls in the United States. This program is being performed pursuant to Section 215 of the USA Patriot Act, which allows the Foreign Intelligence Surveillance Court (FISC) to issue "an order requiring the production of any tangible things...for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities." To obtain such an order, the government must show only "that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation."

Today, I'll focus on the second leak, involving a Top Secret government program known as "Prism." According to press reports, the NSA and FBI are tapping into the databases of Microsoft, Google, Yahoo!, Facebook, PalTalk, YouTube, Skype, AOL, and Apple. The agencies are obtaining, inter alia, the content of e-mails, chats, videos, video conference calls, VoIP communications, photos, file transfers, and responses to "special requests." Unlike the telephone metadata program, which involves only access to stored data, Prism appears to allow the government to wiretap communications during transmission.

Prism is based not on Section 215 of the Patriot Act, but on Section 702 of the FISA Amendments Act of 2008 (codified at 50 U.S.C. § 1881a). This provision authorizes US intelligence agencies to "target" for acquisition the communications of non-US persons who are "reasonably believed to be located outside the United States"—even if the surveillance is effected in, and one or more parties to the communication are located within, the United States. Section 702 allows the Attorney General and the Director of National Intelligence, without a court order, to direct an electronic communication service provider to "immediately provide the Government with all information, facilities, or assurance necessary to accomplish the acquisition."

However, prior to such surveillance, the government must gain approval from the Foreign Intelligence Surveillance Court of its "targeting" and "minimization" procedures. The targeting procedures are supposed to ensure that surveillance is "targeted" only at non-US persons outside the United States. The minimization procedures are meant to limit the acquisition and retention, and prohibit the dissemination, of information collected against "unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information."

What does this mean in plain English? That the NSA and FBI can collect the communications of non-US persons located outside the US even if those communications are with a US person inside the US. They can do so without a court order.  And they can retain and use any information collected about US persons as long as the government determines that such retention or use is needed for foreign intelligence purposes.

That last point has gone largely unnoticed by reporters and analysts. Much of the press seems to view the telephone metadata program as more worrisome because it appears to be collecting information about pretty much all calls that occur within, or cross through, the United States. But remember, that program does not collect the content of phone calls, or even the names of the persons on the call, but only information about what phone numbers are in communication with each other, the duration of the calls, and things like that. Prism, on the other hand, collects the content of a broad spectrum of Internet communications. Many people seem to regard Prism as a less serious privacy intrusion because the surveillance cannot be targeted at US persons (i.e., citizens and legal resident aliens). But the communications of US persons are being collected.

The government refers to the collection of US persons' communications as "incidental," since the US person may not be the "target." This makes it sound like the collection is rare, inadvertent, and minor. But that's not really accurate. One of the points of the collection is to determine whether foreign terrorists (or spies) are conspiring with someone in the United States, to do harm in America. Indeed, that is how the Administration has justified the program. Officials have cited, in particular, the use of Prism to disrupt a 2009 plot by an American, Najibullah Zazi, to bomb the New York subway system. They say the government learned about the plot because the NSA was monitoring the communications of an al-Qaeda bomb-maker, Rashid Rauf, and found he was in contact with Zazi, who was in Aurora, Colorado. Presumably the authorities then got a FISA warrant to eavesdrop on Zazi's complete communications. Senator Dianne Feinstein (D-CA), Chair of the Senate Intelligence Committee, also said that Prism helped implicate American David Headley in the 2008 terrorist attacks in Mumbai.

In addition, a government official, in describing Prism, said that

"[i]f the N.S.A. comes across information about an American citizen during the search, it turns over that material to the F.B.I. for an assessment."

That hardly sounds like "incidental" collection the way ordinary people would understand that term.

Once the government has reason to focus surveillance on—i.e., "target"—a particular US person, it would have to get a regular FISA surveillance order, or a criminal wiretap order. One would expect that the government's targeting and minimization procedures address this.

Another issue concerns how Prism works. The leaked slides describing Prism say that NSA collects the information "directly from the servers" of the participating communication providers. Several providers deny that the government has direct access to their servers, and say that they respond only to targeted requests for information. But this seems to be a semantic quibble. According to another leaked document, Prism allows "collection managers [to send] content tasking instructions directly to equipment installed at company-controlled locations." And this process is probably automated. So it sounds like the government attaches hardware to the companies' networks; it sends "tasking" instructions to that hardware instructing it to collect the communications of certain targets; and the hardware then extracts the communications and sends them to NSA. So is the government collecting the information directly from the companies' servers, or is it collecting from the hardware it attached to the servers? Does it matter?

After you cut through all the semantics, the only important questions are whether the program is effective, whether it is constitutional, and whether the benefit to security is worth the cost to privacy. As to its effectiveness, the government claims that Prism is a vital tool and has been instrumental in stopping terrorist attacks. We'll probably hear about cases other than the Zazi and Headley matters in the coming days to demonstrate this. And according to the NSA slides, Prism data has been cited in the President's Daily Intelligence Brief more than any other source, and its data has resulted in nearly one in seven intelligence reports. If this information is not just puffery, it suggests that Prism is pretty darn effective.

Is it legal? Well, all three branches of government seem to think so. The Executive Branch obviously does, as it is implementing the program, and President Obama has given a full-throated defense of it. The Legislative Branch does, too, since Prism appears completely consistent with Section 702 of the FISA Amendments Act. And at least part of the Judicial Branch does, since the FISC hasn't chosen to reject the procedures under which Prism operates and thereby stop the program.

But can there be more meaningful judicial review? After all, the FISC has only a limited role, and is often accused (fairly or not) of being a rubber stamp for the intelligence agencies. Its opinions are also almost never made public.

Unfortunately, the likelihood of more meaningful review is quite small. Just this March, the US Supreme Court, in Clapper v. Amnesty International, turned aside a constitutional challenge to Section 702 on the ground that the plaintiffs—a group of civil liberties lawyers, human rights advocates, and others—lacked "standing" to bring suit. To establish standing, a plaintiff must show some concrete "injury in fact." If the injury is only something that might take place in the future, then that threatened injury must be "certainly impending."

The plaintiffs in Clapper claimed standing based on their fear that the US government would intercept their communications with non-US persons overseas without a warrant, and on the costs they had incurred to protect the confidentiality of their communications. But the Court found that these claimed injuries did not pass muster, since they "relie[d] on a highly attenuated chain of possibilities." The Court said that even if plaintiffs could demonstrate that their foreign contacts were being monitored (which they hadn't), they could not show that the US government was monitoring those persons under Section 702, as there are "numerous other methods of conducting surveillance," or that spying on such persons would also lead to the interception of the plaintiffs' communications. Thus, the plaintiffs' argument was based on what the Court implied was "a paranoid fear."

That fear doesn't seem so paranoid in light of last weeks' revelations. But the reality is that the Court's decision makes it difficult for anyone to challenge the law. The only real chance is if someone is prosecuted based on information gathered pursuant to Section 702, and that person moves to suppress the evidence at trial. But that is fairly unlikely, since the government would almost certainly use at trial only wiretap evidence that it collected pursuant to a regular FISA or criminal wiretap order, or documentary or testimonial evidence. Moreover, a challenge would have to overcome the state secrets privilege, which has proven to be an all but insurmountable obstacle to challenges of government intelligence programs, including the Bush Administration's warrantless wiretapping program.

Finally, there's the question of whether the security benefits of the program are worth the cost to privacy. At bottom that's a subjective question, and people will make their own judgments based largely on their personal notions of privacy. In a democracy, the societal judgment about such things is supposed to be made by our elected representatives. No President, whose first responsibility is to protect the security of the nation, is realistically going to decline to use a legal authority that has been granted to him. So that leaves Congress. And as I've said, Congress already enacted Section 702. If Congress now collectively determines that it didn't realize what it was authorizing back in 2008, or thinks the intelligence community has gone too far, it can a) eliminate or cut back on the program, or b) exercise more rigorous oversight to make sure the program stays within bounds. Will it do either of these things? We'll have to wait and see. But I wouldn't hold my breath.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Michael A. Vatis
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.