Oppose Warrantless Government Spying on American Phone Calls and Emails

Oppose Warrantless Government Spying on American Phone Calls and Emails

The Issue

Recent leaks in national and foreign press have revealed that the National Security Agency (NSA), in cooperation with the FBI, is covertly carrying out at least two nationwide surveillance programs which collect information on the private calls and online activities of U.S. citizens and non-permanent residents alike while targeting foreign nationals. These programs are being carried out in secret partnership with some of the nation's top telecommunications and internet and technology companies.

Through secret Foreign Intelligence Surveillance Court (FISC) orders the federal government is obtaining, without any probable cause or suspicion of wrongdoing, data from millions of American Verizon Business Network Services customers and user account information from Google, Yahoo!, Facebook, Microsoft (Hotmail, etc.), Apple, PalTalk, YouTube, Skype and AOL. It is strongly suspected that the federal government is also collecting call data from all other major phone carriers.

FISA Court/Verizon Background

On June 5, The Guardian exposed a top secret Foreign Intelligence Surveillance Act (FISA) court order that authorized the NSA to collect data on Verizon customers "on an ongoing daily basis," which included calls made "wholly within the United States, including local telephone calls."

The Guardian described the surveillance program as collecting "information gathered as you use technology ... [That] generally does not contain personal or content-specific details." Examples of such metadata include phone numbers between parties on a call, as well as timestamps, GPS location signatures, call duration, and other unique identifiers -- but not the names of persons participating in the calls (although such information is easily attainable) and the content of their conversations.

During recent congressional hearings, NSA officials testified that under the current Verizon surveillance program, such metadata is retained for a period of five years.

PRISM Background

On June 6, The Guardian and The Washington Post revealed the existence of PRISM, a clandestine national security internet surveillance program overseen by the NSA to collect broad customer data from participating internet and technology companies. Collected data includes information on personal emails, chats, videos, photos, stored data, VoIP, file transfers, video conferences, logins, and details on online social networking.

Established under the authorities granted by section 702 of FISA, civil liberties groups contend that PRISM exceeds its congressionally intended purpose to only collect information on non-U.S. persons residing overseas.

Contradictory accounts exist on how PRISM actually gathers the data it collects from participating internet and technology companies. The NSA has either direct access to the servers of these companies, a claim denied by Microsoft, Google, and Facebook, access to remotely secured file drop-boxes, or other mechanisms. CAIR questions the overall constitutionality of the NSA being able to have access to, collect, or store data on the communications of American citizens without any probable cause of wrongdoing.

While it is reported that stored data collected under PRISM cannot be accessed by national security or law enforcement until it becomes relevant to an investigation of a foreign national, once relevant, communications between non-citizens and American citizens, family, friends, academic colleagues, or business partners can become part of a larger investigation.

The White House claims that these separate domestic spying programs are designed to only target "non-U.S. persons outside the U.S." and "minimize ... acquired information about U.S. persons." Rights groups question PRISM's less than stringent standards to protect against unconstitutional privacy breaches. PRISM program safeguards for reviewing collected data are only "designed to produce at least 51 percent confidence in a target's 'foreignness.'"

CAIR has expressed serious concerns over this test. It remains unclear to the public who in the NSA or FBI ultimately decides what constitutes "foreignness" and whether or not discriminatory criteria, such as national origin or religion, are being used in these assessments. CAIR contends that if there is only a 51 percent "certainty" that the targets of surveillance are foreign, that leaves a 49 percent chance of "incidental collection" from American citizens.

Under such loose standards, the incidental collection of details on the communications of American citizens becomes highly probable when targeting foreign nationals. Especially when NSA analysts are trained to collect data on all contacts twice removed from initial targets. While training materials acquired by The Washington Post instruct new analysts to make quarterly reports on such incidental collection of U.S. communications, they add "it's nothing to worry about."

CAIR also questions how long the NSA is able to retain information collected by PRISM. As reported by The Associated Press, "Two decades from now, the government could have a trove of American emails and phone records it can tap to investigative whatever Congress declares a threat to national security."

What Is Being Asked of Congress and the Administration

While some in Congress and the White House say that these spying programs are lawful under the Patriot Act and Foreign Intelligence Surveillance Act, CAIR and the civil rights community believes that the Fourth Amendment of the U.S. Constitution is clear: 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 ...

CAIR recommends Congress to amend Section 215 of the USA PATRIOT Act, the state secrets privilege, and the FISA Amendments Act to ensure that the unwarranted surveillance of internet activity and phone records from citizens residing in the US is, in fact, illegal and to ensure that violations would be reviewed in a public court.

CAIR recommends for the creation of an investigative committee to reveal the extent and scope of these spying programs, and for a possible inquiry by the congressional ethics committees, depending on the results of the investigation. This should be done with the intent of holding elected officials accountable for their involvement in furthering or enabling this unwarranted surveillance.

CAIR also recommends for this investigation to determine what criteria have been used to collect records, and to determine for how long these records are being stored. Without information regarding these criteria that purportedly establish "foreignness," CAIR remains concerned that these programs have been discriminating against citizens on the basis of religion and national origin.

Legislative initiatives like these are necessary to protect the fourth amendment rights of all American citizens, including members of the American Muslim community which has been subject to unwarranted and discriminatory acts of surveillance for more than a decade.

What Has Been Said About the FBI & NSA Domestic Spying Programs

President Obama:

"What I can say unequivocally is that if you are a U.S. person, the NSA cannot listen to your telephone calls, and the NSA cannot target your emails ... and have not."

NSA Director Gen. Keith Alexander:

"In recent years, these programs, together with other intelligence, have protected the U.S. and our allies from terrorist threats across the globe to include helping prevent the terrorist -- the potential terrorist events over 50 times since 9/11."

Senator Mark Udall (D-Colo.):

"The NSA's collection of millions of Americans' phone call records is the type of overreach I have warned about for years. Although I strongly believe some authorities under the Foreign Intelligence Surveillance Act provide valuable information that helps protect our national security, Americans with no link to terrorism or espionage should not have to worry that their private information is being swept up."

Representatives Justin Amash (R-Mich.) and John Conyers (D-Mich.):

"We accept that free countries must engage in secret operations from time to time to protect their citizens. Free countries must not, however, operate under secret laws. Secret court opinions obscure the law. They prevent public debate on critical policy issues and they stop Congress from fulfilling its duty to enact sound laws and fix broken ones."

Senator Dianne Feinstein (D-CA):

"It's called protecting America."

Representative Mike Rogers (R-Mich.)

"One of the things that we're charged with is keeping America safe and keeping our civil liberties and privacy intact. I think we have done both in this particular case."

Microsoft:

"We provide customer data only when we receive a legally binding order or subpoena to do so, and never on a voluntary basis. In addition we only ever comply with orders for requests about specific accounts or identifiers. If the government has a broader voluntary national security program to gather customer data we don't participate in it."

Google:

"Google cares deeply about the security of our users' data. We disclose user data to government in accordance with the law, and we review all such requests carefully. From time to time, people allege that we have created a government 'back door' into our systems, but Google does not have a backdoor for the government to access private user data."

Senator Dick Durbin (D-Illinois):

"Also in future gathering of information, minimization is critical. To minimize the information to gathered to protect innocent Americans ... instead of gathering all of the metadata, phone records of one area code to focus on the suspects ... "

Senator Patrick Leahy (D-VT):

" ... we have not yet struck the right balance between the intelligence-gathering needs of the FBI and the privacy rights of Americans."

Sources:

Braun, Stephen, Anne Flaherty, Jack Gillum, and Matt Apuzzo. "Secret to Prism Program: Even Bigger Data Seizure." The Big Story. The Associated Press, 15 June 2013. Web. 19 June 2013.

Team, Guardian US Interactive. "A Guardian Guide to Your Metadata." The Guardian. Guardian News and Media, 12 June 2013. Web. 24 June 2013.

Isikoff, Michael. "NSA Considers Ending Collection of Data on Americans' Phone Calls." NBC News. NBC, 18 June 2013. Web. 19 June 2013.

Gellman, Barton, and Laura Poitras. "U.S., British Intelligence Mining Data from Nine U.S. Internet Companies in Broad Secret Program." Washington Post. The Washington Post, 07 June 2013. Web. 19 June 2013.

Phillip, Abby D. "President Obama: NSA Spying Programs 'Transparent'." ABC News. ABC News Network, 17 June 2013. Web. 19 June 2013.

Sullivan, Sean. "NSA Head: Surveillance Helped Thwart More than 50 Terror Plots." Washington Post. The Washington Post, 18 June 2013. Web. 19 June 2013.

Lardinois, Frederic. "Google, Facebook, Dropbox, Yahoo, Microsoft, Paltalk, AOL And Apple Deny Participation In NSA PRISM Surveillance Program."

CrunchGov. Tech Crunch, 6 June 2013. Web. 19 June 2013.

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