NSA cutting back on surveillance...not so much

The National Security Agency recently made headlines by promising to reduce the amount of information collected on American citizens. Specifically, the agency promised to no longer use Section 702 of the FISA Act -- which was intended to allow the NSA to conduct surveillance of foreigners -- to spy on Americans who happened to be mentioned in a conversation between the foreign target and another American citizen.

So this is a step forward, right? Well, according to Judge Andrew Napolitano and former CIA analyst turned CATO scholar Patrick Eddington, not so much.

Judge Napolitano's piece can be found here and with excerpts below:

Late last week, President Donald Trump told CBS News that domestic surveillance of American citizens should the “No. 1” topic of inquiry until we can find out “what the hell is going on” with it. Also late last week, the National Security Agency — the federal government’s 60,000-person-strong domestic spying agency — announced that it would voluntarily hold back on its more aggressive uses of Section 702 of the Foreign Intelligence Surveillance Act.

That section permits the NSA to capture communications between foreigners and Americans without a warrant from any court, even though the NSA has its own secret court that has granted well over 99 percent of applications for spying brought to it.

Yet the NSA has convinced the Foreign Intelligence Surveillance Court that when it captures the communications of a foreigner and an American and those communications refer to a third person who is an American, Section 702 extends the authority for warrantless spying to that third person, as well. And it extends to any person whom the third person is talking about — and so forth, out to the sixth level of communication.

If you do the math, this NSA-concocted, Section 702-generated, secret FISA court-approved logic permits warrantless spying on nearly everyone in the United States. So why did the NSA announce that it will pull back on the way it utilizes Section 702 as the basis for its mass spying?


Yet government lawyers, who have no opposition standing next to them when they appear in the FISA court, have convinced the court that the constitutional requirement of probable cause only applies to the government when it is engaging in law enforcement, not when it seeks intelligence data. So when the NSA asks the FISA court for authority to conduct surveillance, the FISA court complies, and it does so with warrants that do not specifically describe the place to be searched or the person or thing to be seized. These warrants typically authorize spying by ZIP codes or area codes or street addresses or telecommunications companies’ customer lists.

What the NSA does not tell the FISA court is that its requests for approvals are a sham. That’s because the NSA relies on vague language in a 35-year-old executive order, known as EO 12333, as authority to conduct mass surveillance. That’s surveillance of everyone — and it does capture the content of every telephone conversation, as well as every keystroke on every computer and all fiber-optic data generated everywhere within, coming to and going from the United States.

This is not only profoundly unlawful but also profoundly deceptive. It is unlawful because it violates the Fourth Amendment. It is deceptive because Congress and the courts and the American people, perhaps even the president, think that the FISA court has been serving as a buffer for the voracious appetite of the NSA. In reality, the NSA, while dispatching lawyers to make sophisticated arguments to the FISA court, has gone behind the court’s back by spying on everyone all the time.

In a memo from a now-former NSA director to his agents and vendors, leaked to the public, he advised capturing all data from everyone all the time. This produces information overload, as there is more data than can be analyzed; each year, it produces the equivalent of 27 times the contents of the Library of Congress. Therefore, safety — as well as liberty — is compromised.

The recent mass killings in Boston, San Bernardino and Orlando were all preceded by text messages and cellphone conversations between the killers and their confederates. The NSA had the digital versions of those texts and conversations, but it had not analyzed them until after the killings — because it has and has had too much data to analyze in a critical and timely manner.

So, why did the NSA announce that it is pulling back from its customary uses of Section 702? To give the false impression to members of Congress that it follows the law. Section 702, the great subterfuge, expires at the end of this year, and the NSA, which has spied on Donald Trump since before he was president, fears the debate that will accompany the efforts to renew it — hence its softening public tone.

Read Patrick's piece here with excerpts below:

 The FISA Amendments Act was passed in 2008 after a more than two-year effort to make the Bush administration’s previously illegal STELLAR WIND warrantless mass-surveillance program legal. Section 702 of the legislation allows the government to target the communications of foreign individuals and entities if a “significant purpose” (not more precisely defined) is the acquisition of “foreign intelligence.”

As Stanford University’s Jennifer Granick has noted, “Section 702 proponents emphasize the FISA statute’s requirement that surveillance under the 702 provision only target non-US persons located abroad. They then push the seductive (but false) implication that this requirement means section 702 does not materially affect Americans.”

In fact, a partially declassified FISA Court (FISC) opinion from November 2015 explicitly acknowledges that “there are substantial quantities of information concerning United States persons within the Section 702 data subject to querying by the FBI.” And you don’t have to be a criminal to have your communications sucked up into NSA’s Section 702 dragnet; all you have to do is call, text, fax, or email somebody overseas, or vice versa.

If you’ve communicated with anybody overseas, the odds are very high that your data has been collected under Section 702 (or possibly other surveillance programs carried out pursuant to the nearly 40-year old Executive Order 12333), and as the Michael Flynn episode has demonstrated, your identity—and the identity of those you were talking to overseas—could be publicly revealed.


The only reason NSA has made this highly publicized recent change is that it got caught violating past FISC rulings holding that warrantlessly searching the captured communications of Americans that simply mentioned a foreign target was unconstitutional.

And if Edward Snowden’s revelations of U.S. government mass surveillance have prompted you to start using encrypted message apps like Signal or WhatsApp, that 2015 FISC opinion I cited earlier also allows the government to keep and try to break your encrypted messages.

So even if you have broken no law, the secret court that oversees America’s secret laws thinks it’s just fine for NSA and FBI to collect and try to break into your conversations with your family, friends, co-workers, etc.

There’s nothing remotely American about this, as The Atlantic reminded us recently in an article detailing the Founders’ use of encrypted messages, both while in government and as private citizens.

And as Jennifer Granick notes in her excellent new book American Spies, executive-branch claims that Section 702 has been vital to preventing terrorist attacks on America are just as specious as previous such claims about the warrantless telephone metadata program that Snowden exposed in 2013.

Of the four Section 702 “success stories” touted by Intelligence Community officials, one involved the transfer of money to the Somali Salafist terrorist organization Al-Shabab for a plot that was not directed at America. Regarding the other three examples, Granick notes that “the terrorist either was or should have been under surveillance per narrower and more targeted surveillance that impacts fewer people.”

In other words, the available public record shows that Section 702 collection has not made us safer while collecting huge quantities of sensitive information on potentially millions of innocent Americans—data that is sitting on government computer servers, just waiting to be hacked by foreign powers or hacker collectives.

Unfortunately, many privacy and civil-liberties advocates hailed NSA’s court-ordered change as a victory, with Senator Wyden telling the New York Times that “This change ends a practice that allowed Americans’ communications to be collected without a warrant merely for mentioning a foreign target. For years, I’ve repeatedly raised concerns that this amounted to an end run around the Fourth Amendment. This transparency should be commended.” Accepting a change to a surveillance power that should never have existed is a win for NSA, not the Bill of Rights.


Congress passed the FISA Amendments Act without mandating that the intercepted communications of innocent Americans be destroyed immediately upon discovery or requiring annual evaluations of the effectiveness of the law. Instead, it’s allowed federal intelligence and law-enforcement agencies to collect, store, and search your “incidentally” collected phone calls, emails, and text messages without a criminal predicate and a probable cause-based warrant as the Constitution’s Fourth Amendment requires. And as Granick’s research shows, the very collection the FISA Amendment Act authorizes hasn’t made us safer. Those facts should be front and center when Congress debates reauthorization of this law later this year.

Campaign for Liberty is working to  defeat efforts to renew Section 702 of the FISA Act and instead force Congress to start repealing all federal laws that authorize wholesale violations of America's constitutionally-protected rights to be free from warrantless wiretapping and mass surveillance.

Print Friendly Version of this pagePrint Get a PDF version of this webpagePDF

Tags: , ,