NSA Surveillance: What To Watch For
June 4: Oral argument in U.S. v. Mohamud (challenge in criminal case to FAA) (Portland)
June 5: ACLU's Jameel Jaffer and others debate future of surveillance reform (D.C.)
June 20: Argument in ACLU suit seeking release of opinions on bulk collection under Section 215 (N.Y.C.)
The National Security Agency's mass surveillance of American citizens has greatly expanded in the years since September 11, 2001. Recent disclosures have shown that the government is regularly tracking all of the calls of almost every ordinary American and spying on a vast but unknown number of Americans' international calls, text messages, and emails.
The government's new surveillance programs have infiltrated most of the communications technologies we have come to rely on. They are largely enabled by two problematic laws passed by Congress under a national security premise: the Patriot Act and the FISA Amendments Act (FAA). While the Foreign Intelligence Surveillance Court (FISC) is supposed to oversee the government's surveillance activities, it operates in near-total secrecy through one-sided procedures that heavily favor the government.
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. Here's some of what we're doing to roll back the surveillance state.
The government claims 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 exceeds the authority given to the government by Congress, but it violates 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 the Patriot Act just days after the program was revealed in June 2013 by The Guardian.
Despite the revelations, Congress and the public have yet to receive the full story about how the Patriot Act is being used to collect information on Americans. 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, and we are continuing to litigate a Freedom of Information Act lawsuit that we filed in 2011 demanding the government release information about its use and interpretation of Section 215. Read about Section 215 — and other unconstitutional provisions of the Patriot Act — here.
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.
Recent Patriot Act news and analysis from the ACLU:
NSA Reform Takes Its First Steps
Finally, a Day in Court to Challenge Mass Surveillance
The NSA Can Only Spy With A Little Help From Its Feds
You May Have ‘Nothing to Hide’ But You Still Have Something to Fear
Misdirection: The House Intelligence Committee’s Misleading Patriot Act Talking Points (INTERACTIVE)
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 the statute would be used to eavesdrop on Americans’ private communications and, in June 2013, The Guardian published documents 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 January 2014, the ACLU joined a new challenge to the FAA’s constitutionality in United States v. Muhtorov — on behalf of Jamshid Muhtorov, the first criminal defendant to receive notice that he was surveilled under the FAA. The ACLU argues that the FAA violates both the Fourth Amendment and Article III of the Constitution because it permits the government to intercept the international communications of U.S. residents like Mr. Muhtorov without obtaining a warrant or any kind of individualized court review.
Read this ACLU explainer for more on what the new disclosures tell us about how the NSA's surveillance procedures threaten American's privacy.
Recent FAA news and analysis from the ACLU:
NSA Spy Target Challenges Warrantless Wiretapping Law
"Let's Put The Whole Elephant Out There": President Obama's Speech and Bulk Searches of Americans’ Emails
A Guide to What We Now Know About the NSA's Dragnet Searches of Your Communications
Under the FISA Amendments Act, Your Calls and Emails Can’t Be “Targeted,” But They Can Certainly Be Collected
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 released in June 2013, we filed a motion seeking access to the secret judicial opinions underlying the NSA's mass call tracking program. 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.
The FISA Court’s Problems Run Deep, and More Than Tinkering is Required
ACLU, Yale Clinic Seek Secret Court Opinions Authorizing Bulk Collection of Americans’ Records
ACLU Seeks Secret Court Opinions Authorizing NSA’s Mass Acquisition of Americans’ Phone Records
ACLU FOIA Lawsuit for Records Relating to Section 215, Including FISC Briefs and Opinions