<nettime> Jennifer Stisa Granick, Christoper Jon Sprigman: The Criminal NSA (NYT)

["Patrice Riemens" <patrice@xs4all.nl>]

original to:
http://www.nytimes.com/2013/06/28/opinion/the-criminal-nsa.html

(bwo Mark T, 'moving from transparency to accountability'...)


The Criminal N.S.A.
By JENNIFER STISA GRANICK and CHRISTOPHER JON SPRIGMAN

THE twin revelations that telecom carriers have been secretly giving
the National Security Agency information about Americans? phone calls,
and that the N.S.A. has been capturing e-mail and other private
communications from Internet companies as part of a secret program
called Prism, have not enraged most Americans. Lulled, perhaps, by
the Obama administration?s claims that these ?modest encroachments
on privacy? were approved by Congress and by federal judges, public
opinion quickly migrated from shock to ?meh.?

It didn?t help that Congressional watchdogs ? with a few exceptions,
like Senator Rand Paul, Republican of Kentucky ? have accepted
the White House?s claims of legality. The leaders of the Senate
Intelligence Committee, Dianne Feinstein, Democrat of California, and
Saxby Chambliss, Republican of Georgia, have called the surveillance
legal. So have liberal-leaning commentators like Hendrik Hertzberg and
David Ignatius.

This view is wrong ? and not only, or even mainly, because of the
privacy issues raised by the American Civil Liberties Union and other
critics. The two programs violate both the letter and the spirit of
federal law. No statute explicitly authorizes mass surveillance.
Through a series of legal contortions, the Obama administration has
argued that Congress, since 9/11, intended to implicitly authorize
mass surveillance. But this strategy mostly consists of wordplay,
fear-mongering and a highly selective reading of the law. Americans
deserve better from the White House ? and from President Obama, who
has seemingly forgotten the constitutional law he once taught.

The administration has defended each of the two secret programs. Let?s
examine them in turn.

Edward J. Snowden, the former N.S.A. contract employee and
whistle-blower, has provided evidence that the government has
phone record metadata on all Verizon customers, and probably on
every American, going back seven years. This metadata is extremely
revealing; investigators mining it might be able to infer whether we
have an illness or an addiction, what our religious affiliations and
political activities are, and so on.

The law under which the government collected this data, Section
215 of the Patriot Act, allows the F.B.I. to obtain court orders
demanding that a person or company produce ?tangible things,? upon
showing reasonable grounds that the things sought are ?relevant? to
an authorized foreign intelligence investigation. The F.B.I. does not
need to demonstrate probable cause that a crime has been committed, or
any connection to terrorism.

Even in the fearful time when the Patriot Act was enacted, in
October 2001, lawmakers never contemplated that Section 215 would
be used for phone metadata, or for mass surveillance of any sort.
Representative F. James Sensenbrenner Jr., a Wisconsin Republican
and one of the architects of the Patriot Act, and a man not known as
a civil libertarian, has said that ?Congress intended to allow the
intelligence communities to access targeted information for specific
investigations.? The N.S.A.?s demand for information about every
American?s phone calls isn?t ?targeted? at all ? it?s a dragnet. ?How
can every call that every American makes or receives be relevant to a
specific investigation?? Mr. Sensenbrenner has asked. The answer is
simple: It?s not.

The government claims that under Section 215 it may seize all of our
phone call information now because it might conceivably be relevant to
an investigation at some later date, even if there is no particular
reason to believe that any but a tiny fraction of the data collected
might possibly be suspicious. That is a shockingly flimsy argument ?
any data might be ?relevant? to an investigation eventually, if by
?eventually? you mean ?sometime before the end of time.? If all data
is ?relevant,? it makes a mockery of the already shaky concept of
relevance.

Let?s turn to Prism: the streamlined, electronic seizure of
communications from Internet companies. In combination with what we
have already learned about the N.S.A.?s access to telecommunications
and Internet infrastructure, Prism is further proof that the agency
is collecting vast amounts of e-mails and other messages ? including
communications to, from and between Americans.

The government justifies Prism under the FISA Amendments Act of
2008. Section 1881a of the act gave the president broad authority to
conduct warrantless electronic surveillance. If the attorney general
and the director of national intelligence certify that the purpose
of the monitoring is to collect foreign intelligence information
about any non­American individual or entity not known to be in the
United States, the Foreign Intelligence Surveillance Court can
require companies to provide access to Americans? international
communications. The court does not approve the target or the
facilities to be monitored, nor does it assess whether the government
is doing enough to minimize the intrusion, correct for collection
mistakes and protect privacy. Once the court issues a surveillance
order, the government can issue top-secret directives to Internet
companies like Google and Facebook to turn over calls, e-mails, video
and voice chats, photos, voice­over IP calls (like Skype) and social
networking information.

Like the Patriot Act, the FISA Amendments Act gives the government
very broad surveillance authority. And yet the Prism program appears
to outstrip that authority. In particular, the government ?may not
intentionally acquire any communication as to which the sender and all
intended recipients are known at the time of the acquisition to be
located in the United States.?

The government knows that it regularly obtains Americans? protected
communications. The Washington Post reported that Prism is designed
to produce at least 51 percent confidence in a target?s ?foreignness?
? as John Oliver of ?The Daily Show? put it, ?a coin flip plus 1
percent.? By turning a blind eye to the fact that 49-plus percent of
the communications might be purely among Americans, the N.S.A. has
intentionally acquired information it is not allowed to have, even
under the terrifyingly broad auspices of the FISA Amendments Act.

How could vacuuming up Americans? communications conform with this
legal limitation? Well, as James R. Clapper Jr., the director of
national intelligence, told Andrea Mitchell of NBC, the N.S.A. uses
the word ?acquire? only when it pulls information out of its gigantic
database of communications and not when it first intercepts and stores
the information.

If there?s a law against torturing the English language, James Clapper
is in real trouble.

The administration hides the extent of its ?incidental? surveillance
of Americans behind fuzzy language. When Congress reauthorized the law
at the end of 2012, legislators said Americans had nothing to worry
about because the surveillance could not ?target? American citizens or
permanent residents. Mr. Clapper offered the same assurances. Based on
these statements, an ordinary citizen might think the N.S.A. cannot
read Americans? e-mails or online chats under the F.A.A. But that is a
government ­fed misunderstanding.

A ?target? under the act is a person or entity the government wants
information on ? not the people the government is trying to listen to.
It?s actually O.K. under the act to grab Americans? messages so long
as they are communicating with the target, or anyone who is not in the
United States.

Leave aside the Patriot Act and FISA Amendments Act for a moment, and
turn to the Constitution.

The Fourth Amendment obliges the government to demonstrate probable
cause before conducting invasive surveillance. There is simply no
precedent under the Constitution for the government?s seizing such
vast amounts of revealing data on innocent Americans? communications.

The government has made a mockery of that protection by relying on
select Supreme Court cases, decided before the era of the public
Internet and cellphones, to argue that citizens have no expectation
of privacy in either phone metadata or in e-mails or other private
electronic messages that it stores with third parties.

This hairsplitting is inimical to privacy and contrary to what at
least five justices ruled just last year in a case called United
States v. Jones. One of the most conservative justices on the Court,
Samuel A. Alito Jr., wrote that where even public information
about individuals is monitored over the long term, at some point,
government crosses a line and must comply with the protections of the
Fourth Amendment. That principle is, if anything, even more true for
Americans? sensitive nonpublic information like phone metadata and
social networking activity.

We may never know all the details of the mass surveillance programs,
but we know this: The administration has justified them through
abuse of language, intentional evasion of statutory protections,
secret, unreviewable investigative procedures and constitutional
arguments that make a mockery of the government?s professed concern
with protecting Americans? privacy. It?s time to call the N.S.A.?s
mass surveillance programs what they are: criminal.

Jennifer Stisa Granick is the director of civil liberties at the
Stanford Center for Internet and Society. Christopher Jon Sprigman is
a professor at the University of Virginia School of Law.



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