The National Security Agency’s mass surveillance has greatly expanded in the years since September 11, 2001. Disclosures have shown that, until recently, the government regularly tracked the calls of hundreds of millions of Americans. Today, it continues to spy on a vast but unknown number of Americans’ international calls, text messages, web-browsing activities, and emails.
The government’s surveillance programs have infiltrated most of the communications technologies we have come to rely on. They are largely enabled by a problematic law passed by Congress — the FISA Amendments Act (FAA), which is set to expire this year — along with Executive Order 12,333, the primary authority invoked by the NSA to conduct surveillance outside of the United States. The Patriot Act has also made it easier for the government to spy on Americans right here at home over the past 15 years. Although the Foreign Intelligence Surveillance Court oversees some of the government’s surveillance activities, it operates in near-total secrecy through one-sided procedures that heavily favor the government.
Our Constitution and democratic system demand that government be transparent and accountable to the people, not the other way around. History has shown that powerful, secret surveillance tools will almost certainly be abused for political ends.
The ACLU has been at the forefront of the struggle to rein in the surveillance superstructure, which strikes at the core of our rights to privacy, free speech, and association.
Surveillance Under the FISA Amendments Act
The FISA Amendments Act of 2008 (FAA) gives the NSA almost unchecked power to monitor Americans’ international phone calls, text messages, and emails — under the guise of targeting foreigners abroad. The ACLU has long warned that one provision of the statute, Section 702, would be used to eavesdrop on Americans’ private communications. In June 2013, The Guardian published documents provided by whistleblower Edward Snowden confirming the massive scale of this international dragnet. Recent disclosures also show that an unknown number of purely domestic communications are monitored, that the rules that supposedly protect Americans' privacy are weak and riddled with exceptions, and that virtually every email that goes into or out of the United States is scanned for suspicious keywords.
In 2008, less than an hour after President Bush signed the FAA into law, the ACLU filed a lawsuit challenging its constitutionality. The case, Amnesty v. Clapper, was filed on behalf of a broad coalition of attorneys and organizations whose work requires them to engage in sensitive and sometimes privileged telephone and email communications with individuals located abroad. But in a 5–4 ruling handed down in February 2013, the Supreme Court held that the ACLU plaintiffs did not have “standing” to sue because they could not prove their communications had actually been surveilled under the law.
In March 2015, the ACLU filed Wikimedia Foundation v. NSA, a lawsuit challenging “Upstream” surveillance under the FAA. Through Upstream surveillance, the U.S. government copies and searches the contents of almost all international — and many domestic — text-based internet communications. The suit was brought on behalf of nine educational, legal, human rights, and media organizations, including the Wikimedia Foundation, operator of one of the most-visited websites on the internet. Collectively, the plaintiffs engage in more than a trillion sensitive internet communications every year, and each has been profoundly harmed by NSA surveillance.
Surveillance Under Executive Order 12,333
Executive Order 12,333, signed by President Reagan in 1981 and modified many times since, is the authority primarily relied upon by the intelligence agencies to gather foreign intelligence outside of the United States. Recent disclosures indicate that the U.S. government operates a host of large-scale programs under EO 12333, many of which appear to involve the collection of vast quantities of Americans’ information. These programs have included, for example, the NSA’s collection of billions of cellphone location records each day; its recording of every single cellphone call into, out of, and within at least two countries; and its surreptitious interception of data from Google and Yahoo user accounts as that information travels between those companies’ data centers located abroad.
In December 2013, the ACLU, along with the Media Freedom Information Access Clinic at Yale Law School, filed a Freedom of Information Act lawsuit demanding that the government release information about its use of EO 12,333 to conduct surveillance of Americans’ communications.
Surveillance Under the Patriot Act
For many years, the government claimed sweeping authority under the Patriot Act to collect a record of every single phone call made by every single American "on an ongoing daily basis." This program not only exceeded the authority given to the government by Congress, but it violated the right of privacy protected by the Fourth Amendment, and the rights of free speech and association protected by the First Amendment. For this reason, the ACLU challenged the government's collection of our phone records under Section 215 of the Patriot Act just days after the program was revealed in June 2013 by The Guardian. In May 2015, a court of appeals found that the phone records program violated Section 215, and Congress allowed the provision to expire in June of that year. The program was reformed by the USA Freedom Act, which passed days later.
To bring greater transparency to the NSA's surveillance under the Patriot Act, the ACLU filed two motions with the secretive FISC asking it to release to the public its opinions authorizing the bulk collection of Americans' data by the NSA.
Our earlier work to reform the Patriot Act includes a number of successful challenges to the government's use of and secrecy surrounding National Security Letters.
Bringing Transparency to the FISA Court
The ACLU has long fought to bring greater transparency and public access to the FISC — the secretive court that oversees the government’s surveillance programs. When the FISC was first established in 1978, it primarily assessed individual surveillance applications to determine whether there was probable cause to believe a specific surveillance target was an agent of a foreign power. In recent years, however, the FISC’s responsibilities have changed dramatically, and the FISC today oversees sweeping surveillance programs and assesses their constitutionality — all without any public participation or review.
The ACLU has been advocating and petitioning for access to the FISC for more than a decade, working with Congress and the executive branch, and appearing before the court itself to push for greater transparency. Days after the court’s Section 215 order was published in the press in June 2013, we filed a motion seeking access to the secret judicial opinions underlying the NSA's mass call tracking program. We have since filed two other access motions in the FISC, seeking significant legal opinions authorizing bulk collection and those interpreting the government’s secret surveillance powers in the years after 9/11. We also signed a brief filed in the FISC in support of the First Amendment rights of the recipients of FISC orders, such as telephone and internet companies, to release information about the type and volume of national security requests they receive from the NSA and the FBI.
Secret law has no place in a democracy. Under the First Amendment, the public has a qualified right of access to FISC opinions concerning the scope, meaning, or constitutionality of the surveillance laws, and that right clearly applies to legal opinions interpreting Americans' bedrock constitutional rights. We all have a right to know, at least in general terms, what kinds of information the government is collecting about innocent Americans, on what scale, and based on what legal theory.