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  • NSA Internet Surveillance Under Section 702 Violates the First Amendment

    The First Amendment is too often overlooked in discussions of the National Security Agency’s vast surveillance authorities. But as Congress considers whether to reauthorize Section 702 of FISA this winter, we must remember that it’s not just our Fourth Amendment rights to privacy that are in the crosshairs, but also our First Amendment rights. These rights to anonymously speak, associate, access information, and engage in political activism are the bedrock of our democracy, and they’re endangered by the NSA’s pervasive surveillance.

    The NSA uses Section 702 to justify ongoing programs to siphon off copies of vast amounts of our communications directly from the Internet backbone as well as require system-wide searches across the information collected by major Internet companies like Google, Facebook, and Apple.

    So how does the First Amendment come to apply to mass surveillance? To understand this, we need to begin with a little history of the civil rights movement.

    As part of the backlash to the Supreme Court’s ruling striking down segregation in schools, the Attorney General of Alabama, John Patterson, brought a lawsuit against a leading civil rights organization, the National Association for the Advancement of Colored People (NAACP). The lawsuit alleged that the NAACP violated a state law requiring “foreign corporations” to file certain paperwork and get approval before practicing business in Alabama. The NAACP is a nonprofit membership organization; it didn’t file the paperwork because it believed it was exempt. While the NAACP fought the suit, the state issued a subpoena demanding detailed records from the NAACP, including membership lists and bank records. The NAACP refused to surrender its membership lists, fearing retaliatory consequences for its members. Because of this refusal, the court fined the NAACP $10,000, which after five days was raised to $100,000. The NAACP continued to fight the order for two years until the Supreme Court took up the issue, never surrendering its membership lists.

    Ultimately the NAACP was vindicated. The Supreme Court recognized that the First Amendment protected the associational privacy interests of NAACP members. It directly recognized that freely associating for advocacy or other purposes is a fundamental right. It noted that state invasions of privacy could infringe on that right: “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the “liberty” assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech… Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.”

    The Supreme Court found that the “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”

    In short, we all have the right to engage in associate with one another and to join and communicate with political and religious groups free from government surveillance.

    As our society has moved online, our associations have become digital in nature. Signing up for a membership or learning about an advocacy group often happens over a website or app. Members of modern political groups coordinate donations, activities, and information over social networks, email, and websites. When the NSA—either by itself or by working with corporate “partners”—collects the digital communications and browsing history of countless individuals, it’s also obtaining records of innocent Americans visiting activism websites, becoming members of advocacy groups, and coordinating social movements. EFF also raised this argument in our case against the mass telephone records collection by the NSA (substantially narrowed in 2015First Unitarian Church of Los Angeles v NSA.

    The surveillance of our communications systems, and thereby the surveillance of our communications, infringes on the very rights of private association upheld by the Supreme Court in 1958.

    So while the Fourth Amendment concerns about 702 and mass surveillance are important, they are not the only problem created by the law. And as Alex Abdo, an attorney at the Knight First Amendment Institute at Columbia University, argues that when it comes to confronting government surveillance, we shouldn’t expect the Fourth Amendment alone to protect our First Amendment interests. He recently wrote that “The Fourth Amendment, unlike the First, is blind to the cumulative effects of invasions of privacy that are small in isolation but substantial in combination.”

    Those cumulative effects are especially felt when it comes to the right to publish and access information freely. While the government may be forbidden from censoring online speakers and readers, the cumulative impact of pervasive digital surveillance has a chilling effect on online communities. The specter of government surveillance quells engagement in online forums, social networks, and blogs that discuss controversial, political, or unpopular positions. Knowing that the government is keeping a digital dossier of comments we leave online and articles we digitally share creates an environment in which speakers hesitate to engage in online political advocacy.

    Readers also hesitate to visit websites that may be seen as out of favor with the government, whether that’s Al Jazeera or CNN or EFF’s own site, knowing that their visit may be recorded in a government database for years to come.

    The NSA’s digital surveillance of countless law-abiding Americans also indirectly affects another key First Amendment right: our right to assembly. Today’s modern protest movements are often organized and fueled by social media and digital communication, where activists coordinate across a wide range of physical locations. The NSA’s pervasive digital surveillance challenges our values as a society that respects and safeguards the right to plan and participate in protests and other political activity, rights which are themselves baked into the First Amendment.

    The pervasive digital surveillance programs of the NSA chip away at the First Amendment protections that underpin our democracy. As Congress considers whether to reauthorize or reform Section 702 surveillance in the coming weeks, we urge them to remember that their choice will not just impact the privacy of Americans, it will have a profound impact on freedom of speech, association, and assembly protected by the First Amendment and ultimately, upon our democracy itself.

    Contact Congress today to speak out against NSA surveillance.

    Source: NSA Internet Surveillance Under Section 702 Violates the First Amendment | Electronic Frontier Foundation



  • National Security Agencies Are Evading Congressional Oversight

    Last week, federal officials from several spy agencies engaged in a full court press in Washington, spinning facts before media outlets, flooding Capitol Hill with lobbyists, and bringing lawmakers to the National Security Agency’s (NSA) Ft. Meade headquarters to feed them selective information about their unconstitutional mass surveillance activities. Predictably omitted from these conversations are the many Americans from across the political spectrum who have raised concerns, ranging from constitutional and commercial to security-related, that have rightfully dogged federal mass surveillance efforts since their revelations—not in official proceedings, but rather by whistleblowers—in 2005 and 2013.

    Rather than embrace bipartisan calls for long overdue and constitutionally necessary limits, executive officials have instead chosen to shoot the proverbial messengers, vilifyingwhistleblowers and building new programs to prevent others from ever coming forward. Last week’s meetings included claims that particular examples of mass surveillance proved useful, ignoring its repeated failures. While the appearance of security may be comforting to some, NSA veterans have identified discarded programs that, relative to their replacements, reportedly did a better job of protecting national security while also protecting the privacy of Americans by encrypting data collected within the U.S. and requiring a warrant for investigators to access it.

    Meanwhile, too many members of Congress from each of the major parties remain excessively deferential to the intelligence community, despite Congress mustering a bipartisan majority to enact preliminary reforms in 2013 and the House approving even more sweeping changes in their wake. Even though the scheduled expiration of a key statute—Section 702 of the Foreign Intelligence Surveillance Act (FISA)—looms mere months away, congressional committees have yet to hold hearings to get beyond executive talking points and begin actively investigating the underlying facts.

    Originally enacted in the 1970s to restrain domestic surveillance, the history of the FISA statute is revealing in itself. Its genesis was a wide-ranging congressional investigation that dramatically uncovered a series of previously secret programs that, instead of promoting security, were carefully tailored to undermine constitutionally protected dissent. Alarmed at wide-ranging executive abuses behind a wall of secrecy, Congress enacted reforms that included the creation of a secret court, and insisted on regulations by the Department of Justice to further curtail the FBI’s 40-year assault on democracy in the form of COINTELPRO: its infamous Counterintelligence Programs.

    Since then, the Justice Department regulations have been watered down periodically, while FISA was ultimately flipped on its head. Most recently, FISA was amended in 2009 to legalize a series of mass surveillance programs begun under the Bush administration in direct violation of the governing statue at the time, as well as constitutional limits. The continuation of these programs under the Obama administration granted them the appearance of bipartisan legitimacy despite their clear and continuing unconstitutionality.

    In the past, concerns about mass surveillance have extended across the political spectrumand around the world. Under the Trump administration, those concerns have grown increasingly pressing, given the president’s seeming disregard for constitutional limits on executive power, and potential willingness to politicize surveillance to serve his own political ends.

    Given those concerns, and the crucial congressional role of checking and balancing the federal executive branch, Congress should aggressively exercise its oversight responsibilities. But there are structural barriers to doing so. Many members of Congress on key congressional committees, for instance, lack qualified staff wielding adequate security clearance to rebut talking points peddled by self-serving executive officials.

    Beyond structural impediments, many members of Congress have been willing to settle for mere assurances from executive officials, rather than insist upon reviewing evidence proving that mass surveillance effectively protects security, and that the government’s systems adequately protect the rights of innocent Americans. Representatives poised to do more include Democrats and Republicans whose constituents may enjoy opportunities to politically force their hands.

    Only by investigating mass surveillance operations can Congress uncover the underlying facts. Such an investigation would be crucial in helping establish the need for long overdue constitutional limits.

    In particular, because agencies including the NSA and FBI have relied on legal loopholes and secret interpretations for which they have grown notorious, one crucial requirement is for backdoor searches of Americans to be first justified by a judicial warrant. While that process does not impose a significant operational burden on agencies, it does prevent the kinds of documented abuses that agency employees and contractors have already committed, which include stalking former lovers using the government’s powerful spying tools.

    Congress should also ensure that intelligence information is used exclusively to protect national security, instead of polluting the criminal legal system with raw intelligence that inherently fails to meet the standards required for evidence to be admitted in court. Congress should not allow powerful military-grade surveillance programs to be used for purposes like routine criminal law enforcement or tracking down undocumented immigrants.

    Congressional oversight of the intelligence agencies should also address issues beyond data collection. In the past, intelligence agencies have undermined attempts by Americans to ensure their own privacy, including by intercepting router shipments and planting covert firmware. Accordingly, Congress must adopt measures to protect encryption and encryption standards from erosion by national security agencies. A restriction along these lines would also serve business interests, which have vocally decried losses amounting to billions of dollars driven by clients making the rational decision to buy encryption devices from other sources.

    Finally, Congress must restore the opportunity for a robust public debate about these issues. That requires reforming the state secrets privilege and fixing the broken classificationsystem described as “dysfunctional” by the former official who administered it. All too often, overclassification keeps policymakers and the public in the dark, and enables a bipartisan war on whistleblowers from whom congressional committees have learned the truth.

    Regardless of what Congress does this fall, advocates will continue to challenge the constitutionality of mass surveillance in the courts, where we have sought for ov