Information, please

"Information, please" Continued...

Issue: "No pray zone?," July 13, 2013

“The practice is akin to snatching every American’s address book—with annotations detailing whom we spoke to, when we talked, for how long, and from where,” said the ACLU in its lawsuit. “It gives the government a comprehensive record of our associations and public movements, revealing a wealth of detail about our familial, political, professional, religious, and intimate associations.”

Larry Klayman, the founder and general counsel of Freedom Watch (and founder of Judicial Watch, another watchdog group), agrees with the ACLU’s privacy concerns. Surveillance is something “every American should be concerned with, left, right, or center,” he said. “It’s really the Washington establishment against the people.”

Klayman has filed two class-action lawsuits on behalf of himself and others potentially affected by the surveillance programs. One of the suits deals with the MAINWAY phone records program, and the second deals with the PRISM international email and internet data program.

PRISM was revealed in a set of classified PowerPoint slides that Snowden leaked to reporters. The slides boasted intelligence officials were able to retrieve data from nine internet companies: Facebook, Google, YouTube, Apple, Microsoft, Skype, AOL, Yahoo, and PalTalk. Under PRISM rules, officials may secretly demand international emails, chat messages, photos, videos, file downloads, and other recorded activity from the companies if relevant to investigating a foreign surveillance target.

Many people already freely reveal a trove of personal information on social media accounts. Privacy settings may block strangers, but won’t stop investigators: Facebook, for example, in June reported fulfilling between 9,000 and 10,000 user-data requests in the second half of 2012, involving 18,000 to 19,000 user accounts globally. The requests included both local police investigations and federal, foreign intelligence investigations involving PRISM. (Before June, the government had forbidden companies from acknowledging secret foreign surveillance requests.)

If an American’s data was incidentally swept up in the course of “foreign surveillance,” he or she would probably never realize it. Klayman’s legal complaint calls PRISM “illegal and unconstitutional,” and asks for the program to be stopped and government databases purged.

A humorous red-and-blue graphic floating around social media portrays President Barack Obama wearing headphones on a campaign-style poster, under the words, “Yes We Scan.” Yet, it was on George W. Bush’s watch, not Obama’s, that both surveillance programs began. (Klayman filed a lawsuit over the Bush surveillance program in 2006.)

The Electronic Frontier Foundation (EFF), a libertarian-leaning group, has been fighting in courts since 2006 for the government to forsake at least some of its eavesdropping ways. The organization launched a suit against the NSA in 2008 over its phone surveillance program. The case is now pending in the U.S. District Court in San Francisco, blocked by government attorneys.

“The government has been up until now asserting the state secrets privilege, saying they can’t even defend this lawsuit without compromising national security,” said Nate Cardozo, an EFF staff attorney. Essentially, the government argues litigation would force it to admit the existence of its surveillance programs. But thanks to the leaked Verizon court order, “That cat is out of the bag,” Cardozo said, which may allow the case to move forward.

By law, the government must get approval for surveillance requests from the Foreign Intelligence Surveillance Court (FISC). But almost all the court’s decisions are classified—including the legal interpretations of the laws the government uses to justify surveillance in the first place.

The court is meant to act as a judicial check to executive spying powers. Some critics fear it acts as a rubber stamp. In 33 years, the secret court has approved 33,900 government surveillance requests and rejected just 11.

EFF has filed a freedom of information lawsuit asking the government to declassify an important 2011 FISC ruling on the constitutionality of NSA surveillance. Currently, the Justice Department is blocking the request. Cardozo said his organization appears to be the first entity other than the government to successfully file a case in the surveillance court: “This is the first tiny crack of sunlight into what was before an entirely secret court.”

Several polls suggest a majority of Americans—up to 60 percent—disapprove of NSA phone record collecting. Are the fears over surveillance overblown?

Intelligence officials insist their surveillance activities are perfectly legal, authorized by the Patriot Act (renewed in 2011) and by the FISA Amendments Act, renewed last December for five years in a bipartisan vote (see "No need to know").

And although NSA officials collect broad telephone metadata, they destroy most records after five years, and only search the database when they have “a reasonable suspicion” their target is a person associated with a foreign terrorist organization. Intelligence officials said they had searched the phone records of less than 300 people last year. 


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