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When Will Surveillance Reform Stop Being Just ‘Cool’?

The passage of the USA Freedom Act is the first curtailment of intelligence authorities since the 9/11 attacks and should mark the beginning — not the end — of reform.

June 25, 2015

Cross-posted on Al Jazeera Amer­ica

Last week, former National Secur­ity Agency Director Michael Hayden declared that he was “cool” with the recently enacted USA Free­dom Act, which reined in govern­ment bulk collec­tion of Amer­ic­ans’ phone records. His char­ac­ter­iz­a­tion of that program as “little” is no doubt accur­ate. Inform­a­tion from the archive of docu­ments released by NSA whis­tleblower Edward Snowden has revealed many other programs that pose equal or greater risks to Amer­ic­ans’ privacy.

But Hayden is too quick to assume that the phone records program will be the only reform. The passage of the USA Free­dom Act is the first curtail­ment of intel­li­gence author­it­ies since the 9/11 attacks and should mark the begin­ning — not the end — of reform.

It’s no surprise that Congress chose to tackle the phone record program first. It is relat­ively straight­for­ward for people to under­stand, and its goal of amass­ing a vast data­base of inform­a­tion about Amer­ic­ans is patently diffi­cult to square with our consti­tu­tional values. Two review boards found it to be of minimal coun­terter­ror­ism value, and a federal appeals court declared it illegal. Even the intel­li­gence community and the pres­id­ent were amen­able to reform.

But Congress is well aware that this reform is insuf­fi­cient. Many of the votes against the act in the House and Senate came from lawmakers who believe it didn’t go far enough.

Several NSA programs are carried out under 2008’s FISA Amend­ments Act, which permits the agency to collect inform­a­tion in the U.S. as long as it is target­ing foreign­ers who are thought to be over­seas. Despite their purpor­ted foreign focus, these programs undoubtedly pull in huge pools of Amer­ic­ans’ commu­nic­a­tions. Inter­na­tional commu­nic­a­tions have grown expo­nen­tially in the last years as it has become easier and cheaper to talk and text with people abroad. In our increas­ingly inter­con­nec­ted world, the notion that surveil­lance targeted at foreign­ers over­seas pulls in only a negli­gible amount of Amer­ic­ans’ private corres­pond­ence is simply outdated. 

Nor is the NSA limited to target­ing terror­ism suspects. It is permit­ted to collect “foreign intel­li­gence inform­a­tion,” a capa­cious category that includes the open-ended class of mater­ial relev­ant to foreign affairs. This allows the NSA to scan all our inter­na­tional commu­nic­a­tions and keep those that it thinks are inter­est­ing. E-mails sent by a Human Rights Watch lawyer to a researcher in Nigeria would be scanned, even if neither is suspec­ted of involve­ment in wrong­do­ing. If they mention some­thing about the polit­ical situ­ation there of interest to the NSA, they could be retained. A text message from an Amer­ican journ­al­ist to a colleague in Turkey asking a ques­tion about the Islamic State in Iraq and the Levant could be picked up as well.

We don’t know how many NSA data­bases of Amer­ic­ans’ inform­a­tion exist or how large they are. We do know that the Federal Bureau of Invest­ig­a­tion dips into these archives of emails, texts, videos and chat messages with few constraints. In other words, inform­a­tion collec­ted without any type of warrant or judi­cial review for intel­li­gence purposes can be obtained by a U.S. law enforce­ment agency and used in a domestic crim­inal proceed­ing.

The House of Repres­ent­at­ives recently passed an amend­ment to the defense appro­pri­ations bill (the National Defense Author­iz­a­tion Act) that would end these back­door searches by defund­ing them. While this initi­at­ive might not pass, lawmakers will have another chance to stop the program when the extraordin­ary and contro­ver­sial grant of powers in the FISA Amend­ments Act expires in 2017.

Even that would just be skim­ming the surface. The vast major­ity of U.S. surveil­lance does­n’t take place under any law passed by Congress. When our intel­li­gence agen­cies collect inform­a­tion over­seas — for example, by tapping into fiber optic cables to scoop up all inform­a­tion that flows through them — they oper­ate under an order issued by Pres­id­ent Ronald Reagan in 1981, Exec­ut­ive Order 12333, which gives the NSA even greater latit­ude to collect inform­a­tion with even fewer privacy safe­guards than any legis­la­tion.

Just because inform­a­tion is collec­ted from a cable over­seas does­n’t mean that it concerns only foreign­ers. Purely domestic emails may be routed through another coun­try and picked up. Copies of docu­ments are stored by cloud providers over­seas, some­times in multiple loca­tions. Domestic websites often have ads, pop-ups and other such links that are hosted on foreign serv­ers, effect­ively send­ing search quer­ies into the inter­na­tional ether. Amer­ic­ans’ privacy is just as affected by over­seas collec­tion as it is by what happens on U.S. soil.

Of course, the NSA must retain the capa­city to collect inform­a­tion neces­sary for the national defense and secur­ity. The ques­tion that needs urgent atten­tion is whether it needs quite as much as it is currently hoard­ing or whether a more targeted approach would keep us both safe and free from the fear that our every move is being watched.

(Photo: Think­stock)