Recent Revelations Suggest There Are No Adequate Safeguards In Place To Protect Innocent Americans From Invasive Surveillance

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NEW YORK – The National Security Agency (NSA) and the Justice Department should disclose any policies and procedures pertaining to how the NSA protects Americans' privacy rights when it collects, stores and disseminates private U.S. communications, according to Freedom of Information Act (FOIA) requests filed today by the American Civil Liberties Union. The NSA has not released a public version of its procedures for protecting the privacy of U.S. communications since 1993.

"The American public needs to know whether the NSA's procedures are sufficiently protective of our privacy rights," said Melissa Goodman, staff attorney with the ACLU National Security Project. "Unfortunately, there is often no meaningful court oversight of the NSA's surveillance activities and the NSA is left to police itself."

On October 9, ABC News reported that NSA officials have intercepted, listened to and passed around the phone calls of hundreds of innocent U.S. citizens working overseas, including soldiers, journalists and human rights workers from organizations like the International Red Cross and Doctors Without Borders, even after it was clear that the calls were not in any way related to national security. NSA officials regularly passed around salacious calls such as the private "phone sex" calls of military officers calling home, according to the report.

The new information shows the government has misled the American public about the scope of its surveillance activities and seems to contradict the statements of Bush administration officials who assured the public that the NSA's surveillance activities were directed at suspected terrorists. It also suggests there are no real safeguards in place to protect the privacy of Americans who are swept up in NSA surveillance, and that any safeguards that do exist are ineffective or largely ignored by NSA agents.

The ACLU FOIA requests ask the NSA and the Justice Department to produce:

• Any and all legal memoranda, procedures, policies, directives, practices, guidance or guidelines created between 1993 and the present pertaining to the acquisition, processing, analysis, retention, storage or dissemination of Americans' communications – whether targeted for interception or incidentally intercepted – during the course of NSA surveillance activities conducted inside or outside the United States; and

• Any and all records created between September 2001 and the present concerning complaints about, investigations of, or disciplinary actions related to the NSA's monitoring of U.S. communications.

In July 2008, Congress enacted the FISA Amendments Act of 2008 (FAA), giving the NSA unprecedented power to spy on Americans without warrants. The law was passed over the strong objections of not only the ACLU and other civil liberties groups, but many members of Congress and the American public. The FISA Amendments Act permits dragnet, suspicionless surveillance of Americans' international communications – precisely the kind of invasive and ineffective monitoring that was reported last week.

The ACLU filed a landmark lawsuit to stop the government from conducting surveillance under the new wiretapping law, arguing that the law violates the Fourth Amendment by giving the government virtually unchecked power to intercept Americans' international e-mails and telephone calls. The case was filed on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations.

"The FAA shows the danger of Congress choosing to legislate before it investigates," said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. "We now know that whistleblowers approached the Senate Judiciary Committee last year with claims of NSA malfeasance and that efforts to bring them to light went nowhere. Congress should have been much more aggressive while investigating those allegations. If it had, the FISA Amendments Act may have had the safeguards needed to prevent this kind of abuse in the future. As it stands now, the privacy rights of Americans are as protected as any given NSA analyst allows them to be."

The ACLU's FOIA request to the NSA is available online at: www.aclu.org/safefree/nsaspying/37143lgl20081015.html

The ACLU's FOIA request to the Department of Justice is online at: www.aclu.org/safefree/nsaspying/37144lgl20081015.html

More information about the ACLU's ongoing FAA lawsuit is available online at: www.aclu.org/faa