The NSA Continues to Violate Americans' Internet Privacy Rights

A federal court will be scrutinizing one of the National Security Agency’s worst spying programs on Monday. The case has the potential to restore crucial privacy protections for the millions of Americans who use the internet to communicate with family, friends, and others overseas.

The unconstitutional surveillance program at issue is called PRISM, under which the NSA, FBI, and CIA gather and search through Americans’ international emails, internet calls, and chats without obtaining a warrant. When Edward Snowden blew the whistle on PRISM in 2013, the program included at least nine major internet companies, including Facebook, Google, Apple, and Skype. Today, it very likely includes an even broader set of companies.

PRISM Slide

The government insists that it uses this program to target foreigners, but that’s only half the picture: In reality, it uses PRISM as a backdoor into Americans’ private communications, violating the Fourth Amendment on a massive scale. We don’t know the total number of Americans affected, even today, because the government has refused to provide any estimate.

This type of unjustifiable secrecy has also helped the program evade public judicial review of its legality because the government almost never tells people that it spied on them without a warrant. Indeed, the government has a track record of failing to tell Americans about this spying even when the person is charged with a crime based on the surveillance. That’s one reason why this case is so important — this time, the government has admitted to the spying.

In this case, the government accused a Brooklyn man, Agron Hasbajrami, of attempting to provide material support to a designated terrorist organization in Pakistan. After he pleaded guilty to one of the charges, the government belatedly admitted that it had read through his emails without a warrant.

Now Mr. Hasbajrami has challenged the government’s warrantless surveillance and is asking the Second Circuit Court of Appeals to throw out the resulting evidence. The American Civil Liberties Union and the Electronic Frontier Foundation are supporting him as friends-of-the-court, arguing that the surveillance was unconstitutional (the brief we filed is here). At the hearing on Monday, we’ll explain to a three-judge panel why the Fourth Amendment requires the government to get a warrant when it wants to exploit the communications of Americans who are swept up in PRISM.

This large-scale internet surveillance grew out of the Bush administration’s post-9/11 warrantless wiretapping program. It is conducted under a controversial law known as Section 702 of the Foreign Intelligence Surveillance Act. Relying on Section 702, the government intercepts billions of international communications — including many sent or received by Americans — and it hunts through them in investigations that have nothing to do with national security.

The government attempts to defend this spying by pointing out that its “targets” are foreigners located abroad. But this is no defense at all. Americans regularly communicate with individuals overseas, and the government uses PRISM surveillance to collect and sift through many of these private communications. The government has even admitted that one of the purposes of Section 702 is to spy on Americans’ international communications without a warrant.

The government casts a wide net, making it easy for innocent Americans who communicate with family, friends, and others overseas to be swept up. Relying on a single court order, the NSA uses Section 702 to put more than 125,000 targets under surveillance each year. These individuals need not be spies, terrorists, or accused of any wrongdoing — they can be journalists, business people, university researchers, or anyone else who may have information bearing remotely on “foreign affairs.”

PRISM is a warrantless wiretapping program that operates around the clock, vacuuming up emails, Facebook messages, Google chats, Skype calls, and the like. Government agents do not review all of the information in real-time — there’s simply too much of it. Instead, the communications are pooled together and stored in massive NSA, FBI, and CIA databases that can be searched through for years to come, using querying tools that allow the government to extract and examine huge amounts of private information.

PRISM Slide

One of the most problematic elements of this surveillance is the government’s use of “backdoor searches” to investigate individual Americans. Although the government says PRISM is targeted at foreigners who lack Fourth Amendment privacy rights, it systematically combs through its PRISM databases for the emails and messages of Americans. Indeed, FBI agents around the country routinely search for the communications of specific Americans using their names or email addresses — including at the earliest stages of domestic criminal investigations.

The result is an end-run around the Fourth Amendment. Investigators have easy access to a trove of Americans’ private emails, calls, and messages, without ever seeking individualized approval from any judge, as the Constitution requires.

This surveillance leaves far too much unchecked power in the hands of executive branch officials. Today, that includes President Trump, who as a candidate called for expanded spying on Americans. The ACLU is taking on this threat to Americans’ privacy rights, just as we challenged the government’s warrantless wiretapping across both the Bush and Obama administrations. Now the courts must do their part to ensure that Americans’ online communications receive the full protection of the Fourth Amendment.

View comments (26)
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Carolyn

Most Americans will think nothing of it because it appears to not be anything that will touch them. Again, slippery slope. Let them do as they please to "foreigners" and it creeps closer violating "us." Wake up.

C-Fan

You're goddamm right CAROLYNE!

Anonymous

im a victim of it, ive had them use it like voyerism n mental torture, have had them run bank scams, mess with utilities, my cable, my personal life, and they need to do away with all of it cause ppl cnt be trusted with it, and theyve ruined my life. im a retired undercvr informant.

Anonymous

Allow me to add to this list: messing with security systems and the loud sound that diplomats and state dept ppl experienced in Cuba is also going on here. Not to mention the mini drone surveillance, both stationary and roving ones.

Anonymous

Fake news. You were targeted by a group of aliens that put a special implant in your leg.

Anonymous

If the government considers you a KST, they will destroy you. No way to get off the list but to go hide in a corner. You cannot leave the country and enter the country and all your movements are tracked and your entire family suffers. A true quasi nazi apartheid state where the government has created a digital and a virtual often invisible apartheid state.

Anonymous

Ironic that Trump accused Obama of spying on him. But he wants expanded spying of everyone else. We no long live in a society with privacy or civil liberties.

RP

@AnonymousIronic that Trump accused Obama of spying on him. But he wants expanded spying of everyone else. We no long live in a society with privacy or civil liberties.

Obama, Did what Mr. Nixon did! only far worse!!! He did it to the entire American People! The ones he swore to protect! but they ran Mr. Nixon out of town on a rail! Obama, broke the camels back! The only difference was, what Mr. Nixon did was just! because those Democrats where corrupt! and far worse are they today! They was just mad because Mr. Nixon beat them to the punch!

Anonymous

The left and the right want NSA spying on citizens to stop. Then how in the world does it continue, when nearly everyone in our country wants it to stop? Exactly who is responsible?

Also, the next time an NSA spokesman tries to sugarcoat this issue, let's get someone, anyone, to ask why the GCHQ (in the U.K.) is allowed to spy on Americans and then simply pass that along to U.S. intelligence. U.S. spooks think they are being clever by doing it this way.

Anonymous

Every communication made electronically is sent over multiple networks owned by many different companies. For example let’s use a simple email sent from a laptop computer connected to your home WiFi for example.
When you turn on your computer 99% of us boots up to windows or apple iOS. These are the first set of companies that “collect” your data. Then your computer connects to a network you set up through your ISP (internet service provider), these are companies like ATT, Verizon, Spectrum, and various cable and sattalite providers. Most are Telcos.
Then you open your internet browser or mail app and login to your mail account. These are accounts like Yahoo, Gmail, outlook, etc. These companies keep records of and have access to every email you ever sent or received from these accounts. Remember the Yahoo hack?

This is a simple example of how 3 different companies intercept your email before it even reaches the recipient. Add to that the intelligence agencies employ thousands of people covertly at telcos, ISPs and companies like google and yahoo. They can collect whatever they want. The Who is them and us.

Consider INTERPOL. They have no authority but can issue a red arrest warning on anyone anywhere at anytime. No one is concerned with this either.

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