To be sure, Obama pledged his support for efforts to revamp the procedures of the secret court that authorizes surveillance, and that initiative is important. He also released the government’s legal analysis for its bulk collection of every domestic phone call, and more generally committed to greater transparency in the National Security Agency’s work.
But we need more than just “tightening the bolts,” as the president put it.
Privacy is a human right. It’s guaranteed by treaties the United States is party to and affirmed in international standards the United States helped develop.
The state can take steps that interfere with privacy if doing so is necessary to protect other rights, but its actions have to be proportionate to the aim it’s seeking to achieve. And it has to justify its actions.
There’s no question that the breathtaking extent of the government’s surveillance of telephone and internet communication infringes on privacy.
To start with, there’s the program that collects records of every domestic phone call. These records don’t include the content of the calls themselves, but the “telephony metadata” that are scooped up reveal a lot about our daily activities: who we call, when, for how long and how often, and where we are when we place those calls, if they go through cell towers. This is already a lot of information about how we each go about our daily lives.
In addition, on August 8, the New York Times reported that the NSA is examining all email messages that come into and out of the United States. The purpose is to locate information associated with terrorism or counterintelligence. That’s a legitimate aim, of course, but the methods the NSA employs apparently mean that it’s conducting a blanket search of every email message that enters or leaves a U.S.-based server.
In fact, thanks to Edward Snowden’s disclosures to The Guardian and the Washington Post, we know that the NSA’s PRISM and X-KEYSCORE surveillance programs allow NSA analysts to search and read nearly everything the typical Internet user does online. Emails, video, photos, video and voice calls, chats, file transfers, social networking details, and other information are open for scrutiny.
PRISM reportedly gives the NSA a backdoor entry to major social networking, data storage and transfer, and email providers. For example, a recent Guardian article reported that PRISM enabled the NSA to acquire access to Microsoft’s online cloud storage system.
And a leaked NSA presentation of the X-KEYSCORE program states that it allows NSA analysts to search and read the content of emails, Facebook chats, private messages, and other social media activities as well as browser history and “every email address seen in a session by both username and domain,” “every phone number seen in a session (eg address book entries or signature block),” and other user activity—“username, buddylist, machine specific cookies etc.”
What about the government’s justification? The administration defends the bulk collection of telephony metadata by saying that the content of the calls isn’t monitored or recorded. In fact, government lawyers argue—and the Foreign Intelligence Surveillance Court has so far agreed—that warrants aren’t required for this activity because people don’t have a privacy interest in the phone numbers and the other details of the calls they make.
That’s a convenient conclusion for those who want to conduct surveillance without basic legal checks, but it isn’t a reasonable one. Most people probably don’t want the state to collect information that enables it to assemble a detailed picture of their daily activities and network of contacts, at least not without a specific and individualized reason.
As for the other programs, which unabashedly do give NSA analysts access to the content of our communications, the government’s rationale is even flimsier. Some of the programs only target communications that the agency “reasonably believes”—with 51 percent certainty—to involve a “non-U.S. person.” That’s no comfort to those of us who don’t live in the United States. And those who do have no guarantee against official eavesdropping: the agency’s standard is a coin toss plus one percent.
Ultimately, instead of attempting to make a showing—in advance and to the public—that its surveillance measures are necessary and proportionate, the government’s explanation boils down to “trust us.”
That’s true even after Obama’s recent remarks. “To others around the world, I want to make clear once again that America is not interested in spying on ordinary people,” he said.
In addition to the modest steps he’s backed, we need much more. The Justice Department needs to revisit the facile conclusions its lawyers have reached.
The surveillance court should release unclassified versions of its decisions. And Congress must act to close the legal loopholes that have enabled such a potentially massive intrusion into our private lives.
Bochenek is director of Law and Policy at Amnesty International.