On the 6th of June Glen Greenwald (author and columnist for The Guardian) shook US public life with a story that the U.S. National Security Agency (NSA) is collecting phone records from all phonecalls made by customers of Verizon, one of America’s largest telecoms providers. The collection of phone records was permitted by a secret court-order issued by the FISA court in April.
See Verizon court order (leaked) (pdf)
According to Greenwald, “The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing.”
As other news outlets pried deeper, it turned out that the data mining program was much larger and more systemic.
Information leaked by NSA security analyst Edward Snowden revealed that the U.S. government created a data mining program codenamed Prism, “which allows officials to collect material including search history, the content of emails, file transfers and live chats, the document says.”
The Washington Post revealed that the top-secret data mining program was “authorized by federal judges working under the Foreign Intelligence Surveillance Act (FISA), the U.S. intelligence community can gain access to the servers of nine Internet companies for a wide range of digital data.”
See the classified (leaked) Powerpoint presentation.
The question most people have been asking themselves is: how did the U.S. get here? How did the government transform a democratic state (and a self-proclaimed champion of the rule of law) into an Orwellian surveillance state without the people knowing?
My view is that ‘the law taketh what the law giveth’. What most people will find hard to believe is that the law has been instrumental in the erosion of U.S.’ democratic and constitutional principles.
Below I provide a brief explanation of the laws applicable to the Prism program.
The right to privacy
The right to privacy is a constitutional right protected by the Fourth Amendment of the Constitution of the United States of America. The Fourth Amendment states that:
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.
In summary, American people have a right to the security of their person and property from unreasonable search and seizure. No warrant shall be issued without probable cause (a reason). A warrant must describe the place, person and property to be searched or seized.
Foreign Intelligence Surveillance
After 911 terror attacks it became necessary U.S. government to biff up foreign surveillance in order to combat international terrorism. One step was the controversial U.S. Patriot Act.
Section 215 U.S. Patriot Act amended sections 501 to 503 of the Foreign Intelligence Surveillance Act of 1978 and extended the intelligence gathering exception to the right to privacy.
The Act authorizes “The Director of the FBI or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.”
It should be noted that the section itself makes no specific reference to the Fourth Amendment. Instead, section 215 creates a number of self-contained safeguards.
Firstly, the Act requires that an investigation to be conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor order). More specifically, the investigation is to “be conducted [on a] on a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States.”
Secondly, the Act requires each request for an ex parte application to be made to a judge of the FISA court established by section 103(a) [or permited by the Chief Justice]. The order shall approve the release of records if the judge finds that the application meets the requirements of this section.
More importantly, section 215 requires that the application “shall specify that the records concerned are sought for an authorized investigation conducted in accordance with subsection (a)(2) to protect against international terrorism or clandestine intelligence activities.”
An order under this subsection shall not disclose that it is issued for purposes of an investigation described in subsection and no person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.”
Legislative oversight
The Act requires the Attorney General to inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate concerning all requests for the production of tangible things on a semiannual basis.
On a semiannual basis, the Attorney General is required to provide to the Committees on the Judiciary of the House of Representatives and the Senate a report setting forth with respect to the preceding 6-month period—
- the total number of applications made for orders approving requests for the production of tangible things under section; and
- the total number of such orders either granted, modified, or denied.’
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