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The National Security Agency recently announced that it had stopped the practice of its warrantless surveillance program of American citizens. This supposedly ends a once-secret form of wiretapping that was started as a response by the Bush administration’s post 9-11 expansion of national security initiatives.
While originally intended as a way to track foreign suspects operating on American soil, former President Obama massively expanded the program to collect all digital communications of American citizens as well.
The National Security Agency has enjoyed relatively broad authority to monitor communications among suspected terrorists and their associates, even when those people happen to be American citizens, and even without a warrant.
The problem, according to privacy advocates, is that computers cannot tell the difference between who is a citizen and who isn’t. Computers can only tell the origin and destination of the messages. As a result, the N.S.A. argued it was necessary to scoop up ALL communications and sort out the differences out later.
The N.S.A. is now attempting to adhere to a 2011 ruling by the Foreign Intelligence Surveillance Court (FSIC). The court found this data collection program violated the Fourth Amendment because some internet companies packaged and processed emails in bundles — meaning if one message contained a foreign target’s email address, the entire group was swept up. The N.S.A. was intercepting domestic communications, resulting in illegal searches.
The FISC allowed the surveillance to continue, but with a new safeguard in place: The N.S.A. proposed a program where it would keep these bundled emails in a separate repository where analysts would not be able to easily see them.
Until 2013, it was not publicly known that the equipment installed on network switches was systematically collecting all cross-border internet traffic and sending it to the N.S.A.
This expanded surveillance was first revealed amid the fallout from the leaks by the former intelligence contractor Edward J. Snowden. From now on, the program will receive and store only intercepted messages that were directly sent to or from a target.
According to the N.S.A., the agency will no longer be collecting Americans’ emails and texts exchanged with people overseas that simply mention identifying terms for foreigners whom the agency is spying on.
The decision is a major development in American surveillance policy. Privacy advocates have continued to argue that the practice skirted or overstepped the Fourth Amendment.
A senior intelligence official said that problems had arisen when analysts began to search the collected emails looking for criminal activity of American citizens. This is obviously outside the N.S.A.’s scope of responsibility and a violation of American law.
Analysts are still, however, permitted to search for an American’s information within another repository of emails gathered through the warrantless surveillance program’s so-called PRISM, which gathers emails of foreign targets from providers like Gmail and Yahoo Mail.
Privacy advocates refer to this practice as the “backdoor search loophole” and want Congress to require the government to obtain a warrant to search for Americans’ incidentally collected information within the warrantless surveillance repository.
The agency has grappled with how it could continue collecting information on surveillance targets without breaking domestic laws. And of course, it begs the question … is the NSA really following the rules, or is all of this just for show to stem the objections to its massive data collection practices?
When President George W. Bush’s administration created the Stellarwind surveillance program in 2001, it did not have to wrestle with issues such as the lawfulness of data collection, because the program wasn’t set up to spy on Americans, only dangerous and pre-identified foreign targets.
But the Obama administration argued that spying on American citizens was not a violation of the Fourth Amendment because it was in the interest of national security to know about citizen’s activities and communications.
An Obama agency official explained, “Under the proposed method of conducting electronic surveillance, the N.S.A. will be in a position not only to learn information about the activities of its targets, but also to discover information about new potential targets that it may never have otherwise acquired.”
In 2011, however, the N.S.A. told the intelligence court that a byproduct of data collection was resulting in the agency’s collection of tens of thousands of purely domestic emails each year. Later that year, Judge John D. Bates, then the presiding judge on the intelligence court, ruled in secret that the practice violated the Fourth Amendment. However, this secret ruling was never announced nor was it acted upon.
After the Snowden disclosures, the Privacy and Civil Liberties Oversight Board, an independent watchdog agency, conducted a study of the warrantless surveillance program. Intelligence officials told the board that under current technology, the agency could not halt domestic data collection without also losing some messages to or from the targets themselves.
In its statement, the N.S.A. said that limitation still remained the case, but that it had “determined that in light of the factors noted, this change is a responsible and careful approach at this time.”
Of course, technology continues to rapidly advance, and online communication has changed a lot since 2011. Today, more people are using end-to-end encryption and email providers are offering more secure ways to communicate, potentially making it harder for the NSA to round up these messages in the first place. In 2014, Google announced it would use HTTPS connections in Gmail specifically because the NSA was poking around in users’ business.
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