The Obama administration moved late Friday to prevent a federal judge in California from ruling on the constitutionality of warrantless surveillance programs authorized during the Bush administration, telling a court that recent disclosures about National Security Agency spying were not enough to undermine its claim that litigating the case would jeopardize state secrets.
Plaintiffs have a substantial likelihood of showing that their privacy interests outweigh the government’s interest in collecting and analysing bulk telephony metadata and therefore the NSA’s bulk collection program is indeed an unreasonable search under the fourth amendment.
Judge Richard Leon, NSA phone surveillance program likely unconstitutional, federal judge rules
US and British intelligence agencies have successfully cracked much of the online encryption relied upon by hundreds of millions of people to protect the privacy of their personal data, online transactions and emails, according to top-secret documents revealed by former contractor Edward Snowden.
The files show that the National Security Agency and its UK counterpart GCHQ have broadly compromised the guarantees that internet companies have given consumers to reassure them that their communications, online banking and medical records would be indecipherable to criminals or governments.
The agencies, the documents reveal, have adopted a battery of methods in their systematic and ongoing assault on what they see as one of the biggest threats to their ability to access huge swathes of internet traffic – “the use of ubiquitous encryption across the internet”.
Those methods include covert measures to ensure NSA control over setting of international encryption standards, the use of supercomputers to break encryption with “brute force”, and – the most closely guarded secret of all – collaboration with technology companies and internet service providers themselves.
Through these covert partnerships, the agencies have inserted secret vulnerabilities – known as backdoors or trapdoors – into commercial encryption software.
The files, from both the NSA and GCHQ, were obtained by the Guardian, and the details are being published today in partnership with the New York Times and ProPublica. They reveal:
• A 10-year NSA program against encryption technologies made a breakthrough in 2010 which made “vast amounts” of data collected through internet cable taps newly “exploitable”.
• The NSA spends $250m a year on a program which, among other goals, works with technology companies to “covertly influence” their product designs.
• The secrecy of their capabilities against encryption is closely guarded, with analysts warned: “Do not ask about or speculate on sources or methods.”
• The NSA describes strong decryption programs as the “price of admission for the US to maintain unrestricted access to and use of cyberspace”.
• A GCHQ team has been working to develop ways into encrypted traffic on the “big four” service providers, named as Hotmail, Google, Yahoo and Facebook. [read]
[D]ocuments show that the [National Security] agency has already achieved another of the goals laid out in the budget request: to influence the international standards upon which encryption systems rely. Independent security experts have long suspected that the NSA has been introducing weaknesses into security standards, a fact confirmed for the first time by another secret document. It shows the agency worked covertly to get its own version of a draft security standard issued by the US National Institute of Standards and Technology approved for worldwide use in 2006. 'Eventually, NSA became the sole editor,' the document states.
US and UK spy agencies defeat privacy and security on the internet
[D]ocuments show that the [National Security] agency has already achieved another of the goals laid out in the budget request: to influence the international standards upon which encryption systems rely.
Independent security experts have long suspected that the NSA has been introducing weaknesses into security standards, a fact confirmed for the first time by another secret document. It shows the agency worked covertly to get its own version of a draft security standard issued by the US National Institute of Standards and Technology approved for worldwide use in 2006.
'Eventually, NSA became the sole editor,' the document states.
For at least six years, law enforcement officials working on a counternarcotics program have had routine access, using subpoenas, to an enormous AT&T database that contains the records of decades of Americans’ phone calls — parallel to but covering a far longer time than the National Security Agency’s hotly disputed collection of phone call logs.
The Hemisphere Project, a partnership between federal and local drug officials and AT&T that has not previously been reported, involves an extremely close association between the government and the telecommunications giant.
The government pays AT&T to place its employees in drug-fighting units around the country. Those employees sit alongside Drug Enforcement Administration agents and local detectives and supply them with the phone data from as far back as 1987.
The project comes to light at a time of vigorous public debate over the proper limits on government surveillance and on the relationship between government agencies and communications companies. It offers the most significant look to date at the use of such large-scale data for law enforcement, rather than for national security.
The scale and longevity of the data storage appears to be unmatched by other government programs, including the N.S.A.’s gathering of phone call logs under the Patriot Act. The N.S.A. stores the data for nearly all calls in the United States, including phone numbers and time and duration of calls, for five years. Unlike the N.S.A. data, the Hemisphere data includes information on the locations of callers.
Hemisphere covers every call that passes through an AT&T switch — not just those made by AT&T customers — and includes calls dating back 26 years, according to Hemisphere training slides bearing the logo of the White House Office of National Drug Control Policy. Some four billion call records are added to the database every day, the slides say; technical specialists say a single call may generate more than one record.
The slides were given to The New York Times by Drew Hendricks, a peace activist in Port Hadlock, Wash. He said he had received the PowerPoint presentation, which is unclassified but marked “Law enforcement sensitive,” in response to a series of public information requests to West Coast police agencies.
The program was started in 2007, according to the slides, and has been carried out in great secrecy.
“All requestors are instructed to never refer to Hemisphere in any official document,” one slide says. A search of the Nexis database found no reference to the program in news reports or Congressional hearings.
The Obama administration acknowledged the extraordinary scale of the Hemisphere database and the unusual embedding of AT&T employees in government drug units in three states.
Internet giants like Google and Yahoo received millions of dollars from the NSA to cover their surveillance under the PRISM program. These payments occurred after a federal court ruled that surveillance requests the companies handled under the PRISM program were unconstitutional.
The money was meant to cover expenses the companies incurred under court orders mandating the companies assist the NSA in its bulk collection of data, according to a top secret NSA newsletter leaked to the Guardian newspaper by NSA whistleblower Edward Snowden.
The document also shows the NSA was anxious to get certifications from the FISA Court to authorize surveillance beyond the possible expiration of the law that authorized that surveillance. The law was set to expire on December 31, 2012, but the NSA received authorizations under that law to continue its surveillance until September 23, 2013. As long as the certificate from the court was still valid, it would allow ongoing surveillance, the document explains, even if Congress failed to pass or delayed passage of an extension of the law.
From the document:
Foreign Intelligence Surveillance Act (FISA) Amendments Act (FAA702) operations (PRISM and Upstream) require the yearly renewal of three Certifications by the FISA Court. These were signed on 21 Sept 2012, and effective on 24 Sept 2012. Upstream providers completed their transitions to the new Certifications on 24 September 2012, and PRISM providers completed their transitions by 2 October 2012. These documents authorize FAA702 tasking and collection, with directions on targeting and minimization procedures. It is important that these Certifications were renewed, because they authorized FAA702 operations until 23 September 2013, even if Congress fails to pass, or delays passage of, a replacement bill for the 2008 FAA legislation which enables all FAA collection. The FAA law expires on 31 Dec 2012. However, the law permits operations to continue as long as the Certifications are in effect. This year’s Certification renewal occurred on time, compared to 2011 when he FISA Court determined that some procedure with Upstream operations were problematic and required NSA to propose acceptable processes. Last year’s problems resulted in multiple extensions to the Certifications’ expiration dates which cost millions of dollars for PRISM providers to implement each successive extension — costs covered by Special Source Operations.
The PRISM program involves the bulk collection of data from companies under the FISA Amendments Acts, passed in 2008. Section 702 of the law allows the government to target the communications of foreign nationals believed to not be on U.S. soil, but also allows for the collection of data of U.S. citizens if that person is communicating with a foreign national who is targeted. It does not allow for the collection of wholly domestic communications, which the government is supposed to filter out.
The NSA, however, failed to filter out these domestic communications until the court intervened.
The payments to the companies were made after the Foreign Intelligence Surveillance Court ruled in October 2011 that bulk collections of data, in which the NSA was unable to separate wholly domestic traffic from international traffic, was illegal. The court found that the NSA was collecting up to 56,000 wholly U.S. internet communications each year between 2008 when the FISA Amendments Act was passed and 2011 when the court discovered what the NSA was doing. The court ordered the NSA to revise its methods to comply with the Fourth Amendment. The court order discussing the ruling was declassified this week after the Electronic Frontier Foundation fought to have it released.
It’s not unusual for companies to charge the government for the cost of complying with surveillance requests. In 2009, Chris Soghoian, currently senior policy analyst with the ACLU’s Speech, Privacy and Technology Project, obtained price lists showing how much telecommunications companies charge the government for surveillance requests. For example, Cox Communications charges $2,500 for a pen register/trap-and-trace order for 60 days.
But in this case, the costs were also incurred because the government’s surveillance procedures were initially ruled unconstitutional by the judge and had to be revised to filter out wholly domestic content. This required the companies to work with the NSA to devise methods for doing so in a way that satisfied the court.
The Guardian cited four companies as receiving money from the government — Yahoo, Google, Facebook and Microsoft.
Yahoo provided the paper with a statement saying, “Federal law requires the US government to reimburse providers for costs incurred to respond to compulsory legal process imposed by the government. We have requested reimbursement consistent with this law.”
Facebook insisted it had received no money, saying it had “never received any compensation in connection with responding to a government data request.”
Google declined to answer the question and Microsoft refused to answer on the record.
[…] The large number of database query incidents, which involve previously collected communications, confirms long-standing suspicions that the NSA’s vast data banks — with code names such as MARINA, PINWALE and XKEYSCORE — house a considerable volume of information about Americans. Ordinarily the identities of people in the United States are masked, but intelligence “customers” may request unmasking, either one case at a time or in standing orders.
In dozens of cases, NSA personnel made careless use of the agency’s extraordinary powers, according to individual auditing reports. One team of analysts in Hawaii, for example, asked a system called DISHFIRE to find any communications that mentioned both the Swedish manufacturer Ericsson and “radio” or “radar” — a query that could just as easily have collected on people in the United States as on their Pakistani military target.
The NSA uses the term “incidental” when it sweeps up the records of an American while targeting a foreigner or a U.S. person who is believed to be involved in terrorism. Official guidelines for NSA personnel say that kind of incident, pervasive under current practices, “does not constitute a . . . violation” and “does not have to be reported” to the NSA inspector general for inclusion in quarterly reports to Congress. Once added to its databases, absent other restrictions, the communications of Americans may be searched freely.
In one required tutorial, NSA collectors and analysts are taught to fill out oversight forms without giving “extraneous information” to “our FAA overseers.” FAA is a reference to the FISA Amendments Act of 2008, which granted broad new authorities to the NSA in exchange for regular audits from the Justice Department and the office of the Director of National Intelligence and periodic reports to Congress and the surveillance court.
Using real-world examples, the “Target Analyst Rationale Instructions” explain how NSA employees should strip out details and substitute generic descriptions of the evidence and analysis behind their targeting choices.
“I realize you can read those words a certain way,” said the high-ranking NSA official who spoke with White House authority, but the instructions were not intended to withhold information from auditors. “Think of a book of individual recipes,” he said. Each target “has a short, concise description,” but that is “not a substitute for the full recipe that follows, which our overseers also have access to.”
from American Civil Liberties Union
Judge Stephen Smith of the Southern District of Texas held that “warrantless disclosure of cell site data violates the Fourth Amendment.”
A few aspects of the opinion (PDF) are worth noting:
The government’s application appears to request historical location information for whenever the phone was turned on, not just when calls were made. According to Judge Smith, “the Government seeks continuous location data to track the target phone over a two month period, whether the phone was in active use or not.” This is notable because the cell tracking applications we have seen previously only sought location information for those moments when an individual actually made a phone call. The government is now asking for a great deal more information, and consequently its requests are now more invasive than we previously thought.
Cell phone tracking information is increasingly accurate. The opinion devotes many pages to explaining the ways in which cell tracking information has grown more accurate over time. In fact, it is because of these “refinements in location-based technology” that Judge Smith concludes that requests for cell tracking information trigger the Fourth Amendment’s warrant requirement.
The Fourth Amendment requires the government to get a warrant and show probable cause to obtain historical cell tracking information. The court reached this conclusion both because cell tracking reveals information about constitutionally protected spaces such as the home, and because the prolonged nature of such surveillance is very invasive. The court likened the records sought by the government to “a continuous reality TV show, exposing two months’ worth of a person’s movements, activities, and associations in relentless detail.”
A privacy rights group plans to file an emergency petition with the Supreme Court on Monday asking it to stop the National Security Agency’s domestic surveillance program that collects the telephone records of millions of Americans.
The group, the Electronic Privacy Information Center, says it is taking the extraordinary legal step of going directly to the Supreme Court because the sweeping collection of the phone records of American citizens has created “exceptional circumstances” that only the nation’s highest court can address.
The group, based in Washington, also said it was taking its case to the Supreme Court because it could not challenge the legality of the N.S.A. program at the secret court that approved it, the Foreign Intelligence Surveillance Court, known as the FISA court, and because lower federal courts did not have the authority to review the secret court’s orders.
In its petition, the group said the FISA court had “exceeded its statutory jurisdiction when it ordered production of millions of domestic telephone records that cannot plausibly be relevant to an authorized investigation.”
The suit is the latest in a series of legal challenges to the N.S.A.’s domestic spying operations that have been filed over the past month after disclosures by a former N.S.A. contractor, Edward J. Snowden. Based on a document leaked by Mr. Snowden, The Guardian revealed early last month that the FISA court had issued an order in April directing Verizon Business Network Services to turn over all of the telephone records for its customers to the N.S.A. The secret court order was also published by The Guardian.
Within days of the disclosure of the court order, the American Civil Liberties Union filed suit in federal court in New York. Separately, Larry Klayman, a conservative lawyer who runs a group called Freedom Watch, filed a class-action lawsuit in federal court in Washington on behalf of Verizon customers.
Marc Rotenberg, the executive director of the Electronic Privacy Information Center, said his group’s lawsuit would be the first to directly challenge the legal authority of the FISA court to approve the phone records’ collection under the Patriot Act.
Alan Butler, a lawyer for the group, said the judge “lacked the authority to require production of all domestic call detail records.” He noted that the Patriot Act provision cited by the FISA court required that the business records produced be “relevant” to an authorized national security investigation. “It is simply implausible that all call detail records are relevant,” Mr. Butler said.
… [The] new lawsuits benefit from the publication of the secret court order concerning Verizon, providing evidence that the records of Verizon customers have been collected. The American Civil Liberties Union, in its lawsuit, argues that it has legal standing to bring its case because the group is a Verizon customer. [++]
“It is transparent, that’s why we set up the FISA court. The whole point of my concern before I was president — because some people say well, Obama was this raving liberal before, now he’s Dick Cheney. Dick Cheney sometimes says, ‘Yes, you know, he took it all, lock stock and barrel.’ My concern has always been not that we shouldn’t do intelligence gathering to prevent terrorism but rather are we setting up a system of checks and balances?” — Barack Obama (to Charlie Rose 6/17/2013)
In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but
also people possibly involved in nuclear proliferation, espionage and cyberattacks, officials say[let’s be honest: anyone].
The rulings, some nearly 100 pages long, reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.
The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.
Last month, a former National Security Agency contractor, Edward J. Snowden, leaked a classified order from the FISA court, which authorized the collection of all phone-tracing data from Verizon business customers. But the court’s still-secret decisions go far beyond any single surveillance order, the officials said.
“We’ve seen a growing body of law from the court,” a former intelligence official said. “What you have is a common law that develops where the court is issuing orders involving particular types of surveillance, particular types of targets.”
In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.
The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.
That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications
in pursuit of terrorism suspects[see above edit]. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. “It’s another way of tilting the scales toward the government in its access to all this data.”
While President Obama and his intelligence advisers have spoken of the surveillance programs leaked by Mr. Snowden mainly in terms of combating terrorism, the court has also interpreted the law in ways that extend into other national security concerns. In one recent case, for instance, intelligence officials were able to get access to an e-mail attachment sent within the United States because they said they were worried that the e-mail contained a schematic drawing or a diagram possibly connected to Iran’s nuclear program.
In the past, that probably would have required a court warrant because the suspicious e-mail involved American communications. In this case, however, a little-noticed provision in a 2008 law, expanding the definition of “foreign intelligence” to include “weapons of mass destruction,” was used to justify access to the message.
The court’s use of that language has allowed intelligence officials to get wider access to data and communications that they believe may be linked to nuclear proliferation, the officials said. They added that other secret findings had eased access to data on espionage, cyberattacks and other possible threats connected to foreign intelligence.
“The definition of ‘foreign intelligence’ is very broad,” another former intelligence official said in an interview. “An espionage target, a nuclear proliferation target, that all falls within FISA, and the court has signed off on that.”
The official, like a half-dozen other current and former national security officials, discussed the court’s rulings and the general trends they have established on the condition of anonymity because they are classified. Judges on the FISA court refused to comment on the scope and volume of their decisions.
Unlike the Supreme Court, the FISA court hears from only one side in the case — the government — and its findings are almost never made public. A Court of Review is empaneled to hear appeals, but that is known to have happened only a handful of times in the court’s history, and no case has ever been taken to the Supreme Court. In fact, it is not clear in all circumstances whether Internet and phone companies that are turning over the reams of data even have the right to appear before the FISA court.
Created by Congress in 1978 as a check against wiretapping abuses by the government, the court meets in a secure, nondescript room in the federal courthouse in Washington. All of the current 11 judges, who serve seven-year terms, were appointed to the special court by Chief Justice John G. Roberts Jr., and 10 of them were nominated to the bench by Republican presidents. Most hail from districts outside the capital and come in rotating shifts to hear surveillance applications; a single judge signs most surveillance orders, which totaled nearly 1,800 last year. None of the requests from the intelligence agencies was denied, according to the court.
Beyond broader legal rulings, the judges have had to resolve questions about newer types of technology, like video conferencing, and how and when the government can get access to them, the officials said.
The judges have also had to intervene repeatedly when private Internet and phone companies, which provide much of the data to the N.S.A., have raised concerns that the government is overreaching in its demands for records or when the government itself reports that it has inadvertently collected more data than was authorized, the officials said. In such cases, the court has repeatedly ordered the N.S.A. to destroy the Internet or phone data that was improperly collected, the officials said.
The officials said one central concept connects a number of the court’s opinions. The judges have concluded that the mere collection of enormous volumes of “metadata” — facts like the time of phone calls and the numbers dialed, but not the content of conversations — does not violate the Fourth Amendment, as long as the government establishes a valid reason under national security regulations before taking the next step of actually examining the contents of an American’s communications.
This concept is rooted partly in the “special needs” provision the court has embraced. “The basic idea is that it’s O.K. to create this huge pond of data,” a third official said, “but you have to establish a reason to stick your pole in the water and start fishing.”
Under the new procedures passed by Congress in 2008 in the FISA Amendments Act, even the collection of metadata must be considered “relevant” to a terrorism investigation or other intelligence activities.
The court has indicated that while individual pieces of data may not appear “relevant” to a terrorism investigation, the total picture that the bits of data create may in fact be relevant, according to the officials with knowledge of the decisions.
Geoffrey R. Stone, a professor of constitutional law at the University of Chicago, said he was troubled by the idea that the court is creating a significant body of law without hearing from anyone outside the government, forgoing the adversarial system that is a staple of the American justice system. “That whole notion is missing in this process,” he said.
The FISA judges have bristled at criticism that they are a rubber stamp for the government, occasionally speaking out to say they apply rigor in their scrutiny of government requests. Most of the surveillance operations involve the N.S.A., an eavesdropping behemoth that has listening posts around the world. Its role in gathering intelligence within the United States has grown enormously since the Sept. 11 attacks.
Soon after, President George W. Bush, under a secret wiretapping program that circumvented the FISA court, authorized the N.S.A. to collect metadata and in some cases listen in on foreign calls to or from the United States. After a heated debate, the essential elements of the Bush program were put into law by Congress in 2007, but with greater involvement by the FISA court.
Even before the leaks by Mr. Snowden, members of Congress and civil liberties advocates had been pressing for declassifying and publicly releasing court decisions, perhaps in summary form.
Reggie B. Walton, the FISA court’s presiding judge, wrote in March that he recognized the “potential benefit of better informing the public” about the court’s decisions. But, he said, there are “serious obstacles” to doing so because of the potential for misunderstanding caused by omitting classified details.
Gen. Keith B. Alexander, the N.S.A. director, was noncommital when he was pressed at a Senate hearing in June to put out some version of the court’s decisions.
While he pledged to try to make more decisions public, he said, “I don’t want to jeopardize the security of Americans by making a mistake in saying, ‘Yes, we’re going to do all that.’”
Gen. Michael Hayden, the former National Security Agency director who is considered the leading candidate to become CIA director, discussed the Bush administration’s warrantless domestic spying program with reporters Jan. 23, 2006 in Washington. Here is the text of his discussion with Jonathan S. Landay of The Inquirer Washington Bureau.
Question: Jonathan Landay with Knight Ridder. I’d like to stay on the same issue, and that had to do with the standard by which you use to target your wiretaps. I’m no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American’s right against unlawful searches and seizures. Do you use -
Hayden: No, actually - the Fourth Amendment actually protects all of us against unreasonable search and seizure.
Question: But the -
Hayden: That’s what it says.
Question: But the measure is probable cause, I believe.
Hayden: The amendment says unreasonable search and seizure.
Question: But does it not say probable -
Hayden: No. The amendment says -
Question: The court standard, the legal standard -
Hayden: - unreasonable search and seizure.
Question: The legal standard is probable cause, General. You used the terms just a few minutes ago, “We reasonably believe.” And a FISA [Foreign Intelligence Surveillance Act] court, my understanding is, would not give you a warrant if you went before them and say, “We reasonably believe”; you have to go to the FISA court, or the attorney general has to go to the FISA court and say, “We have probable cause.” And so what many people believe - and I’d like you to respond to this - is that what you’ve actually done is crafted a detour around the FISA court by creating a new standard of “reasonably believe” in place of probable cause because the FISA court will not give you a warrant based on reasonable belief, you have to show probable cause. Could you respond to that, please?
Hayden: Sure. I didn’t craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order. Just to be very clear - and believe me, if there’s any amendment to the Constitution that employees of the National Security Agency are familiar with, it’s the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you’ve raised to me - and I’m not a lawyer, and don’t want to become one - what you’ve raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is “reasonable.” And we believe - I am convinced that we are lawful because what it is we’re doing is reasonable.
Text of Fourth Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The government is engaged in warrantless surveillance of innocent Americans’ international communications, according to secret FISA Court documents released today by The Guardian. Jameel Jaffer, American Civil Liberties Union deputy legal director, made the following comments about the latest revelations:
“After Congress enacted the FISA Amendments Act in 2008, we worried that the NSA would use the new authority to conduct warrantless surveillance of Americans’ telephone calls and emails. These documents confirm many of our worst fears. The ‘targeting’ procedures indicate that the NSA is engaged in broad surveillance of Americans’ international communications.
“The ‘minimization’ procedures that supposedly protect Americans’ constitutional rights turn out to be far weaker than we imagined they could be. For example, the NSA claims the authority to collect and disseminate attorney-client communications – and even, in some circumstances, to turn them over to Justice Department prosecutors. The government also claims the authority to retain Americans’ purely domestic communications in certain situations.”
ACLU Staff Attorney Alex Abdo said:
“Collectively, these documents show indisputably that the legal framework under which the NSA operates is far too feeble, that existing oversight mechanisms are ineffective, and that the government’s surveillance policies now present a serious and ongoing threat to our constitutional rights. The release of these documents will help inform a crucial public debate that should have taken place years ago.”
[The] appropriate question is whether the creation of a system of surveillance perilously alters the balance [between state control and citizen autonomy] too far in the direction of government control, whether or not we have problems with the current use of that system. We might imagine a system of compulsory cameras installed in homes, activated only by warrant, being used with scrupulous respect for the law over many years. The problem is that such an architecture of surveillance, once established, would be difficult to dismantle, and prove too potent a tool of control if it ever fell into the hands of people who—whether through panic, malice, or a misguided confidence in their own ability to secretly judge the public good—would seek to use it against us.
Julian Sanchez, A Reply to Apologists for NSA’s Metadata Program
The US supreme court upheld a Maryland law that allows the police to take DNA swabs from anyone arrested, without a warrant. Photograph: Press Association A divided US supreme court ruled this week to uphold a Maryland law that allows the police to collect without warrant DNA material from persons who are arrested. The 5-4 decision was greeted with dismay by civil liberties advocates who see it as a body-blow to privacy and a further erosion of the US constitution’s fourth amendment, which is supposed to protect individuals from excessive government intrusion. The truth is, in an era of mass surveillance, we have little privacy left to lose – and the courts have shown little willingness to resist law enforcement claims that access to our personal and physical data is necessary for them to do their job.
This willingness to forgo the privacy of the many to identify the misbehavior of the few is already well established in America’s warrantless surveillance program. In January, President Obama signed into law a five-year extension of the Foreign Intelligence Surveillance Act (FISA) that allows for the monitoring of personal phone calls and emails as long as one of the communicants is outside the US. We have also recently been given reason to believe that all our domestic phone calls may be “captured as we speak” and that no “digital communications are secure.”
If that is the case, one might think that our court system would at least want to investigate the possibility that the government’s warrantless surveillance might fall into the category of “unreasonable searches and seizures” that the fourth amendment is supposed to protect us from. Instead, this past February, the US supreme court rejected a challenge to FISA – prompting concerns it will never rule on the constitutionality of the warrantless surveillance law.
At the very least, it seems that the courts are reluctant to interfere with the government’s ability to gain access to our private and personal communications – the content of our minds, if you will – when national security and law enforcement agencies claim that this information helps them pursue their objectives. Now, with this warrantless DNA ruling, the court has paved the way for the erosion of our physical privacy as well.
In the majority opinion, Justice Anthony Kennedy wrote that DNA sampling was merely a means of identifying a suspect, in the way that fingerprinting and photographing does, and claimed that when an officer makes an arrest supported by probable cause, taking a DNA swab was a “legitimate police booking procedure that is reasonable under the fourth amendment.”
In a scathing dissent, Justice Antonin Scalia rubbished the notion that DNA sampling was nothing more than an identification tool, saying it “taxes the credulity of the credulous” to suggest that it was not going to be used to attempt to solve other crimes. While no one doubts that DNA samples are a useful tool for solving cold cases or exonerating the wrongfully accused, the concern shared by the minority dissent and civil liberties advocates is that using an individual’s DNA to investigate a crime when the state has no incriminating evidence against that individual represents a drastic overextension of police powers. As the ACLU’s national legal director Stephen R Shapiro, said in a statement:
“The fourth amendment has long been understood to mean that the police cannot search for evidence of a crime – and all nine justices agreed that DNA testing is a search – without individualized suspicion. Today’s decision eliminates that crucial safeguard.”
As regards the future of our genetic privacy, it’s important to note that the law upheld by the US supreme court ruling in the Maryland v King case only allows for DNA to be taken from people who have been arrested and charged with a serious crime, and that this DNA can only be tested after a judge has found there to be probable cause that the person has committed a crime. The attorney Michael Risher who authored the ACLU’s amicus brief in that case points out, however, that other states’ laws and the federal government allow the police to take DNA from people arrested for much less serious crimes, such as drug possession or intentionally bouncing a check. These laws also allow the government to have that sample analyzed even if the person is never charged and when there is no incriminating evidence.
The fear is that this recent decision has paved the way for these much broader laws that allow the violation of our fundamental rights to (genetic) privacy to be upheld also. As Scalia wrote in his dissent:
“Make no mistake about it: as an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”
So, where does all this leave the fourth amendment and that supposedly inalienable right it bestows on us to be secure in our “persons, houses, papers, and effects against unreasonable searches and seizures”?
Thanks to previous US supreme court rulings, we can be stopped in the street and frisked by police without probable cause for arrest. Our international phone calls and emails (and possibly our domestic ones) can be captured and recorded by the state. And now the court has paved the way for our genetic blueprint to to be made available to the government as well.
These successive attacks on the fourth amendment are always justified by law enforcement and national security concerns. If the loss of privacy is the price we have to pay, then it doesn’t feel like a fair bargain.