Wiretapping Excesses: A Tale Foretold

(Originally posted on the ACSBlog.)

Last week the New York Times broke a story that came as no surprise: when armed with expansive dragnet surveillance authority that lacks meaningful safeguards, the government will intercept huge numbers of private, domestic communications between Americans. What’s worse, the government seems to acknowledge the likelihood of such overreaching surveillance, but believes that through trial and error it will eventually solve the problem — notwithstanding the constitutional violations committed in the meantime.

How Did We Get Here?

The recent revelations involve surveillance implemented under the FISA Amendments Act (FAA), which went into law last July. The FAA is the latest attempt to provide legislative approval to some of the surveillance tactics the government implemented secretly until 2005, when the existence of the National Security Agency (NSA) warrantless wiretapping program was uncovered (by the same two Times journalists who wrote last week’s piece).

Normally, before it can wiretap a suspected criminal, terrorist or spy, the government must show probable cause to believe the surveillance target is engaging in unlawful activity or acting for a “foreign power” or terrorist organization, and it must specify the “facilities” (e.g., phone number) it will tap into. Not so under the FAA: the government can now engage in sweeping, suspicion-less surveillance programs with only the most minimal judicial oversight.

Based on a certification to the special surveillance court that it will not intentionally “target” specific Americans or purely domestic communications and that it will take steps to “minimize” inappropriate use of intercepted information, the government wields authority to pursue surveillance on a massive scale without ever identifying particular persons or places it intends to focus its surveillance on. While a “significant purpose” of the surveillance must be “to obtain foreign intelligence information,” the government is not required to assert that its targets are suspected of any wrongdoing or any connection to terrorism or espionage.

This represents a radical departure from the constitutional standards governing surveillance of private communications. As the ACLU has argued in pending litigation challenging the constitutionality of the statute, this system invites surveillance of innocent Americans on a large scale.

Predictable “Over-collection”

What was predictable from the face of the new law has apparently already played out in practice. Here’s the crux of the recent Times’ report: “Several intelligence officials, as well as lawyers briefed about the matter, said the NSA has been engaged in ‘over-collection’ of domestic communications of Americans. They described the practice as significant and systematic, although one official said it was believed to be unintentional.”

In other words, spy agencies did not set out to intercept purely domestic communications — that would be an outright violation of the statute. Instead, they instituted what were probably very broad dragnet surveillance programs (it is impossible to know the precise details), for which the FAA clearly grants authority. Vacuuming up large batches of communications predictably results in netting some that are meant to be protected, and that seems to be what happened here.

Almost as disturbing as this large-scale privacy violation is that this is exactly what the statute envisions—a series of trial-and-error experiments as the NSA calibrates its “targeting” procedures. The cost of that kind of experimentation, of course, is the invasion of constitutionally protected privacy that must occur in order to prompt the government to tweak its methods.

Indeed, the government’s litigation papers seem eerily prescient when compared to the Times report. According to the Times, the “over-collection problems appear to have been uncovered as part of the twice-annual certification” that, under the FAA, the government must provide to the surveillance court. This is exactly the dynamic that the government, in litigation, has claimed will guard the privacy rights protected by the Fourth Amendment.

The reporting requirement, the government has argued, helps ensure the statute’s compliance with the Fourth Amendment, because the surveillance court “can assess how often approved targeting procedures result in targeting mistakes and thereby develop a body of experience to guide future decisions on whether to continue approving similar targeting procedures.” Developing a “body of experience” sure sounds nice, but it writes off, as a mere part of the learning process, the individuals whose private communications get swept within the government’s mass search program. Remember, these aren’t the communications of terrorism suspects; the government doesn’t have to show any reason to believe its surveillance is that finely targeted. But it is only by intercepting such communications that the NSA develops the “experience” necessary to (perhaps, eventually) intercept only international communications.

The good news is that the rest of us also get to develop a “body of experience” about what the FAA means for Americans’ constitutional rights. As the ongoing legal challenge asserts, large-scale surveillance programs stand a far greater chance of invading legitimate expectations of privacy when the main safeguards are attached to the “back-end” (i.e., what happens after communications are intercepted) instead of implementing deeply rooted “front-end” protections — for example, a showing to a judge that the proposed surveillance is based on a specific belief that the targets of surveillance are engaging in illegal activity or are connected to terrorism.

This idea isn’t novel. It finds expression, most famously, in the Fourth Amendment.

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anonymous comment

As an ACLU member, I couldn't be happier about all of your recent successes. Kudos to all who have worked hard to roll back the abuses of the past many years.

Having said this, when will the ACLU and others begin to tackle the extra-judicial/extra-legal "targeting" (and subsequent victimization and abuse) of law-abiding Americans who have had their lives turned upside down. The results of this targeting? Job-interference, thefts, vandalism of homes and personal property, psychological harassment and, dare I say, terrorism. These are not delusions - they are facts.

These operations are taking place in communities all across this country and nothing, it would seem, is being done. When is the ACLU going to step in and help? When it all comes out and it will, what will be the position of the ACLU, if it does nothing to help those whose lives are literally being destroyed?

Vic Livingston

DHS SECRETARY NAPOLITANO:

DO YOU KNOW WHAT YOUR FUSION CENTERS ARE REALLY DOING...

...USING TELECOMMUNICATIONS TO HARASS AND CENSOR U.S. CITIZENS?

Can't seem to access, or post to, certain web sites -- especially, political sites?

Do cookie "blocks" show up in your "preferences" list, even though you didn't request a block, thus preventing you from access?

Are the functions of your computer "hijacked" by third-party remote computing software?

Are you prevented from fully viewing government public documents downloaded from the internet?

Are you blocked from making posts to certain web sites -- seemingly based on the content of your post, receiving messages like "you must be logged on to leave a comment" when the screen shows you've already logged on?

When you post, do typos, spelling errors and other anomalies appear in your comments -- even though you carefully proofread the submission?

You could be the unwitting victim of government "fusion centers" that apparently are using internet "filtering" and realtime remote computing surveillance to censor and maliciously interfere with the telecommunications of American citizens.

Please see this running account of an apparently "targeted" journalist and his quest to exercise his First Amendment right of free speech, and his Fourth Amendment right to be free from unreasonable searches and seizures of telecommunications.

http://blog.aclu.org/2009/01/26/internet-filters-voluntary-ok-not-govern...

Then demand that American Civil Liberties Union renew its fight against warrantless government spying by filing a class-action suit against unconstitutional surveillance and malicious interference with personal and business telecommunications.

Recently, while reading the ACLU blog, this reporter learned of the Bush-Cheney "doctrine" of "ideological exclusion" -- apparently used to bar political "activists" from abroad from visiting the United States.

Could authoritarian bureaucrats be using this doctrine as a justification to censor political speech in this country?

If you suspect the answer is "yes," please add your account to the free speech thread cited above!

http://nowpublic.com/world/govt-fusion-center-spying-pretext-harass-and-...

OR (if links are corrupted / disabled):

http://NowPublic.com/scrivener

authorian citizen

This organization is a threat to free speech!

mrreynolds

I have documents pertaining to allegations of illegal electronic surveillance, obstruction of justice & making false statements in writing to Congress in regards to the documented "existence" of a federal internal affairs investigation which the U.S. Marshals Service denied existed when questioned by Congress. Please review the supporting information within my website. Thank you.

http://www.daprocess.com

Hawaiian style

Mrreynolds No. 4 above. What??? say it again.

The government spying is just another symptom of how we as a people react to threat. Torture, rendition and spying all spring from the same cause.

When we as Americans wake up and realize that the greatest treasure, the most valuable national possession and the most sought after attribute we have is the Constitution and the Bill of Rights, when we realize this and do not tolerate our Politicians distorting or ignoring these documents then the abuses will stop.

Write your Congress person and say why are you allowing the government to do these things. As was said in the sixties people power can if it is used will overcome this political excess.

Richard

As a senior engineer in the Telecommunications industry, I can speak from direct experience that Big Brother has been here for a long time.
The government forced all telecomm workers that work directly on major telecomm hubs, central offices, metropolitan exchanges, etc. to sworn secrecy. The government spy agencies, of various names and forms, have tapped all major trunk lines, and can capture all the data they want without any supervision. They have, and have had for many years, direct access to everything, and suck it all up into their super computers for analysis.
Wake up, folks! You have been warned!

Vic Livingston

But Richard:

That does not explain or EXCUSE unconstitutional and malicious TAMPERING with the telecommunications of individuals and businesses by government-operated "fusion centers" -- what appears to be going on ALL OVER AMERICA.

The ACLU should work this angle, instead of continuing to oppose "surveillance."

The evidence indicates that these surveillance operations are a pretext for harassment, prior restraint, and outright censorship of telecommunications in America.

Is the ACLU naive, or is the organization intimidated by the prospect of having to call government to account for a BIG LIE?

Please, ACLU, show a bit more courage and savvy on this issue.

For the latest example of apparent malicious tampering with this citizen's right to freely communicate, please see this link here at the ACLU blog:

http://blog.aclu.org/2009/01/26/internet-filters-voluntary-ok-not-govern...

ozlllonline

There must be a way, electronically and legally, that withdrawals from your ATM from a ATM machine in another state shuld not be a source of phone calls chasing the person down the road. "Family notification" with family members showing up in the location the withdrawal is made, is chauvinistic and medieval. It assumes that the parents provided the card for the "child" and "have a right to know" where they are. "Family notification" part of Ukraine "Family Law" reflects that SOME bank and telecommunications owners are from the Ukraine and have no formal education...

Need help

I have been the target of warrantless surveillance for opposing torture under the last administration. I have been assaulted by a male contractor, observed by people next door who deal dope, and harassed in church. Despite my documentation and attempts to get help from law enforcement, my Senator, and even President Obama's white house I continue to suffer daily harassment and surveillance. My child has been treated differently in public and private schools. I can't even get the ACLU to answer me. If an ACLU investigator would like information about surveillance in mid Michigan, I have photos, dates, license plates, names, etc. I will leave a message with the Detroit ACLU again today.

Vic Livingston

WHEN WILL ACLU CRUSADE AGAINST WARRANTLESS GPS TRACKING/STALKING OF UNJUSTLY 'TARGETED' AMERICANS AND THEIR FAMILIES?

WHEN WILL TEAM OBAMA RESTORE CIVIL AND HUMAN RIGHTS IN A GRASSROOTS AMERICA WHERE OFFICIALLY-SANCTIONED 'VIGILANTE (IN)JUSTICE' RULES?

The questionable legality and constitutionality of covert, warrantless GPS tracking of unjustly targeted persons and their families FINALLY has broken through to the mainstream media:

http://news.yahoo.com/s/ap/20090525/ap_on_re_us/us_gps_police

This is the Achilles heel that can bring down the technological infrastructure of organized gang stalking and constitutionally suspect police procedures in conducting investigations of "innocent but targeted" individuals and their families.

Mainstream media: Please follow up on the Yahoo News story referenced above.

Civil libertarians: Urge lawmakers to pass a law that prevents the electronic tracking of any individual without an individual-specific (not general) court order -- no more arbitrary, wholesale electronic surveillance and no more covert implantation/activation of devices in vehicles, cell phones or personal property.

This is the issue that the public can understand. Once covert implantation of GPS devices -- or the use of an individual's cell phone as a GPS tracking device -- is definitively made illegal, any official who knowingly allows such surveillance would be an accomplice to a crime. This should be a felony and not a misdemeanor ("harassment," under the law, is a misdemeanor, which is why unjustly targeted American citizens should use the term "torture," or "psychological torture," for non-physical harassment.

Victims of the "extrajudicial targeting and punishment network" spawned or expanded under Bush-Cheney (and now enabled by the inaction of the Obama Administration):

Organize a mass demonstration demanding an end to "covert GPS stalking". Such a demonstration should be aimed at the ACLU -- a demand that these declared civil libertarians address the issue that enables organized stalking of unjustly targeted people and their families.

For more:

http://nowpublic.com/world/gestapo-usa-govt-funded-vigilante-network-ter...

OR (if link is corrupted / disabled):

http://NowPublic.com/scrivener

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