How the NSA’s Mass Internet Spying Poisons Society
By Ashley Gorski, Staff Attorney, ACLU National Security Project
SEPTEMBER 25, 2015 | 6:00 AM
TAGSNSA Surveillance Privacy and Surveillance National Security
Big Brother is watching you.
A federal district court in Virginia will hear oral argument today in Wikimedia v. NSA, a case challenging one of the government’s most sweeping and intrusive forms of warrantless Internet spying. At issue is the NSA’s “upstream” surveillance, which involves the interception, copying, and searching of Americans’ international Internet communications en masse. Unless you’ve never used the Internet to email a friend abroad, chat with family overseas, or browse a website hosted outside the U.S., you’ve almost certainly been caught in the NSA’s unconstitutional dragnet.
By surveilling our emails and sifting through our browsing history, the NSA poses a grave threat to a free Internet and a free society. Mass surveillance makes us far less likely to communicate openly with our friends and loved ones, and it chills participation in the marketplace of ideas.
In defending its surveillance practices, the government routinely invokes the specter of terrorism, but the truth is that the NSA is monitoring all of us. Through upstream surveillance, the NSA is not simply plucking the communications of suspected terrorists, spies, or other targets. Instead, it’s copying and sifting through the contents of essentially everyone’s international communications (and even some domestic ones), looking for information about its targets. And it does all of this without a warrant.
Upstream surveillance is sweeping by design. With the help of companies like Verizon and AT&T, the NSA conducts this spying by tapping directly into the Internet backbone inside the United States — the physical infrastructure that carries Americans’ online communications. After copying virtually all of the international text-based traffic, the NSA searches this traffic for key terms, called “selectors,” that are associated with its many targets.
To use to a pre-digital era comparison: It’s as if the NSA camped out at the U.S. Postal Service’s major processing centers to open, copy, and read the contents of everyone’s international mail — all without a warrant. (This isn’t a far-fetched hypothetical. For decades, the NSA ran a program called “Project Shamrock,” in which the agency copied essentially all telegrams to and from the U.S.) If a letter contained something of interest — for example, a reference to a phone number associated with a target — the NSA would flag the letter and retain a copy for years. Of course, this surveillance would make a mockery of the Fourth Amendment’s warrant requirement: The government can’t simply open all our letters to look for potentially interesting ones. There’s no question that this would violate the Constitution, and there’s no reason to treat Americans’ private internet communications differently.
Inside the United States, the NSA conducts upstream surveillance under the purported authority of the FISA Amendments Act of 2008, a statute with significant constitutional flaws. In essence, the statute says that the NSA can engage in certain warrantless surveillance of Americans who communicate with targets abroad. It also says that the NSA can target nearly any foreigner — without suspicion of wrongdoing and without judicial review. Despite all this, upstream surveillance is so intrusive and indiscriminate that it exceeds even the broad parameters of the FISA Amendments Act.
The ACLU brought Wikimedia v. NSA on behalf of a coalition of legal, media, educational, and human rights organizations, including the Wikimedia Foundation, Amnesty International USA, The Nation magazine, PEN American Center, Human Rights Watch, the Rutherford Institute, the National Association of Criminal Defense Lawyers, Global Fund for Women, and the Washington Office on Latin America. Each of these nine plaintiffs has been deeply affected by U.S. government spying. The confidentiality of plaintiffs’ international communications is essential to their work, and upstream surveillance undermines their ability to ensure that these communications — with colleagues, journalists, witnesses, foreign government officials, victims of human rights abuses, and the tens of millions of people who read and edit Wikipedia — are indeed private.
In August, the government moved to dismiss our suit, arguing that plaintiffs lack standing to challenge upstream surveillance because they have not “plausibly” alleged that their communications are intercepted. But our case is more than plausible: The government’s own disclosures about upstream surveillance, along with media reports, show that the NSA is vacuuming up and reviewing almost all text-based communications that enter and leave the country. Wikimedia alone engages in over a trillion Internet communications each year, with individuals located in virtually every country on earth. Given the volume and geographic distribution of these communications, it’s indisputable that plaintiffs’ communications are ensnared by the NSA.
The government’s upstream surveillance of international internet communications not only violates our clients’ constitutional rights to privacy, freedom of expression, and freedom of association, but it slowly and insidiously poisons everyone’s experience online. The Internet should provide a space in which we can read, write, and explore without fear of unwarranted government scrutiny.
Blanket spying encourages a tendency toward conformity that, over time, has enormous consequences for politics, the arts, and society as a whole. While the cumulative effects of upstream surveillance may be difficult to quantify today, the erosion of core democratic values is no less real as a result.
ACLU Spy Files
The ACLU Campaign to Expose and Stop Illegal Domestic Spying
Today the government is spying on Americans in ways the founders of our country never could have imagined. The FBI, federal intelligence agencies, the military, state and local police, private companies, and even firemen and emergency medical technicians are gathering incredible amounts of personal information about ordinary Americans that can be used to construct vast dossiers that can be widely shared through new institutions like Joint Terrorism Task Forces, fusion centers, and public-private partnerships. And this surveillance often takes place in secret, with little or no oversight by the courts, by legislatures, or by the public. The ACLU is dedicated to uncovering this secret surveillance network so Americans can protect their rights and demand accountability from these law enforcement and intelligence agencies, and from their elected representatives.
The fear of terrorism has led to a new era of overzealous police intelligence activity directed, as so often in the past, against political activists, racial and religious minorities, and immigrants. This new surveillance activity is not directed solely at suspected terrorists and criminals. It’s directed at all of us. Increasingly, the government is engaged in suspicionless surveillance that vacuums up and tracks sensitive information about innocent people. The erosion of reasonable restrictions on government’s power to collect people’s personal information is putting the privacy and free speech rights of all Americans at risk. The American Civil Liberties Union and its affiliates across the country have uncovered and reported on many aspects of this growing domestic surveillance activity over the last several years. Our updated Spy Files website combines the information we’ve collected from Freedom of Information Act requests, ACLU lawsuits and reports, and news accounts so that members of the public can begin to get a comprehensive view of how these networked intelligence activities threaten their civil liberties.
Unaccountable National Security Surveillance
Spy Files: FBI
As the nation’s predominant law enforcement agency, the Federal Bureau of Investigation (FBI) has robust powers to peer into the lives of American citizens. But the FBI claims even broader authorities when acting in the nebulous realm of “domestic intelligence,” where its actions are largely hidden from public view and the procedural checks and balances that apply in criminal investigations are all but non-existent. The ACLU has exposed FBI abuse of its investigative authorities, through Freedom of Information Act lawsuits against FBI Joint Terrorism Task Forces, the FBI “racial and ethnic mapping” program, and the FBI eGuardian suspicious activity reporting program.
2.Department of Homeland Security
Spying With No Direction
Spy Files: DHS
The Department of Homeland Security (DHS) was established in 2003 by combining 22 separate federal agencies, several with law enforcement powers and intelligence missions. As a relatively new member of the Intelligence Community, DHS has struggled to establish a clearly defined role for its intelligence activities, leading at times to error and overreach that implicates the rights of innocent persons. The ACLU is uncovering improper DHS surveillance activities, like suspicion-less border searches, the production of flawed intelligence reports maligning political advocacy organizations, and the implementation of a dubious behavioral profiling program at airports. DHS is also a primary funder of state and local fusion centers and participates in suspicious activity reporting programs, each of which are, or have the potential to, infringe on civil liberties.
3.Department of Defense & National Security Agency
U.S. Military Spying on Americans
Spy Files: DOD & NSA
The U.S. military is funded by American taxpayers to protect our nation and its inhabitants from foreign enemies, not to spy on Americans. The ACLU has been, and remains at the forefront of exposing U.S. military spying programs that target or otherwise sweep up Americans’ personal information in their wide intelligence-gathering programs.
4.Intelligence Agencies (CIA/DNI) Spying
Turning Their Focus on the U.S.
Spy Files: CIA & DNI
As a covert intelligence agency, the CIA may use theft, blackmail, extortion and other dubious methods to collect information. The implications of such behavior on the civil rights and privacy of Americans are obvious if these tools are used domestically – as they may have been since the 9/11 attacks. Indeed the 2004 establishment of the Office of the Director of National Intelligence (DNI) and the Information Sharing Environment (ISE) all but erase the lines between foreign and domestic intelligence collection.
5.State and Local Law Enforcement
Spying in Your Hometown
Spy Files: State Police
Abuses of intelligence powers are not limited to federal authorities. In the past, state and local police forces were known to maintain political intelligence units (sometimes known as Anti-Subversive Squads, or Red Squads), which illegally spied upon and sabotaged numerous peaceful groups throughout the twentieth century. They often amassed detailed dossiers on political officials and engaged in “disruptive” activities targeting political activists, labor unions, and civil rights advocates, among others. The ACLU has gathered substantial evidence that state and local law enforcement agencies around the country are once again using their authorities to spy on or obstruct First Amendment-protected activities of Americans, often in cooperation with federally-sponsored intelligence programs, such as fusion centers and suspicious activity reporting programs.
In November 2007, the American Civil Liberties Union issued its first report on intelligence fusion centers, warning that these rapidly developing multi-jurisdictional spying centers lacked clear guidelines or sufficient oversight, and posed a severe risk to Americans’ civil liberties. By 2012, congressional investigators agreed, finding that fusion center personnel produced “‘intelligence’ of uneven quality – oftentimes shoddy, rarely timely, sometimes endangering citizens’ civil liberties and Privacy Act protections, occasionally taken from already-published public sources, and more often than not unrelated to terrorism.”
7.Joint Terrorism Task Forces
The FBI conducts its counterterrorism intelligence operations primarily through Joint Terrorism Task Forces (JTTF). According to the FBI’s website, over 600 state, local and federal agencies participate in JTTFs, including the U.S. military and, at one point at least, the Central Intelligence Agency (CIA). In 2004 the ACLU engaged in a FOIA campaign that uncovered FBI JTTF spying on political advocacy organizations. A follow-up Inspector General investigation proved the FBI lied to hide these improper activities from Congress and the American public.
8.Suspicious Activity Reporting
Dumbing Down Suspicion
Over the last few years, federal, state and local authorities have initiated “suspicious activity reporting” (SAR) programs to encourage law enforcement officers, intelligence and homeland security officials, emergency responders, and even the public to report the “suspicious” activities of their neighbors to law enforcement and intelligence agencies. The problem is that many of the behaviors these SAR programs identify as precursors to terrorism include innocuous and commonplace activities such as using binoculars, taking pictures, drawing diagrams and taking notes. SAR programs increase the probability that innocent people will be stopped by police and have their personal information collected for inclusion in law enforcement and intelligence data bases. They also open the door to racial profiling and other improper police practices by giving police unwarranted discretion to stop people who are not reasonably suspected of wrongdoing.
MORE ABOUT SUSPICIOUS ACTIVITY REPORTING