By Paul Rosenzweig, The George Washington University Law School
The critics and defenders of America’s Web surveillance programs and the Privacy and Civil Liberties Oversight Board have reported that more than one quarter of NSA reports on international terrorism include information based in whole, or in part, on data collected under the Section 702 program. The program has played a role in discovering and disrupting specific terrorist plots aimed at the United States.
The Surveillance of Najibullah Zazi
The investigation that the government has publicly said was aided by the PRISM program was the case of Najibullah Zazi, the man who planned to bomb the New York City subway system. The Guardian newspaper interviewed several people who were involved in the case and reviewed US and British court documents.
The Guardian concluded that the investigation began with conventional surveillance methods, such as old-fashioned tip-offs from the British intelligence services, rather than relying on leads produced by NSA surveillance. For that matter, there is no good data on how much incidental collection there is about US persons. One board report showed that at one time, 198 US persons were identified as legitimate targets of collection.
But the real issue is how many are collected as collateral to the general foreign intelligence mission. After all, if the volume of incidental collection overwhelms the useful data on terrorist threats, then one might be skeptical about its efficacy. The major criticisms of the program are, therefore, rather more fundamental.
This is a transcript from the video series The Surveillance State: Big Data, Freedom, and You. Watch it now, on Wondrium.
A Critique on Web Surveillance
One critique is offered by William Banks, the founding director of the Institute for National Security and Counterterrorism at Syracuse University. He says:
The government uses a broad vacuum cleaner-like first stage of collection, focusing on transactional data where wholesale interception occurs. Then the NSA engages in a more particularized collection of content after analyzing mined data.
Some worry that the 702 program is, in effect, creating a vast storehouse of data. Consider just one example: a program known as XKeyscore. In 2007, an NSA report estimated that the agency had collected and stored approximately 850 billion call events and 150 billion Internet records.
William Binney, a mathematician who used to work at the NSA, estimates that the number is much, much higher. He says that the storehouse involves almost 20 trillion e-mail and telephone transactions.
Is Section 702 Collection on Americans a Mistake?
It doesn’t require any particularized suspicion that the US person who is the subject of the inquiry is actually engaged in any wrongdoing himself. For that reason, one criticism, voiced by a presidential review board, as well as many members of Congress, is that Section 702 collection on Americans is a category mistake.
The program, they argue, is appropriate without individual case supervision and a warrant requirement precisely because it targets non-Americans. So when the communications of Americans are targeted, they contend that the probable cause and warrant requirements should apply—or, put another way, that the government should not be able to get through foreign surveillance evidence against Americans unofficially, that it could only normally get through a warrant with judicial approval.
For that reason, there have been some efforts in Congress to amend the law to prohibit the NSA from searching its databases for information on Americans without a warrant based upon probable cause issued by a court.
Learn more about how technology outruns the law.
International Reaction to Section 702
International reaction to the revelation of the Section 702 program has been especially harsh. After all, the express purpose of the program is to target the communications of foreigners, and, so, they are understandably chagrined at the prospect. Though, to be fair, there is a bit of the ‘I’m shocked to find there’s gambling going on’ to their responses. Nevertheless, foreign anger, and the adverse effects of it on American foreign policy, are real.
Two Hong Kong legislators wrote to the White House, saying that, ‘The revelations of blanket surveillance of global communications by the world’s leading democracy have damaged the image of the U.S. among freedom-loving people around the world.’
Perhaps, most famously, German newspapers reported that the NSA had monitored Chancellor Angela Merkel’s cell phone. Merkel called President Barack Obama and told him that spying on friends was never acceptable, no matter what. The United States denied the report and then promised not to do it again.
Learn more about how private companies amass large amounts of data.
Thomas Friedman: The Defender of Section 702 Program
Amid all of these competing impulses, New York Times columnist Thomas L. Friedman has defended limited government surveillance programs intended to protect the American people from terrorist acts. He writes:
Yes, I worry about potential government abuse of privacy from a program designed to prevent another 9/11—abuse that, so far, does not appear to have happened. But I worry even more about another 9/11. If there were another 9/11, I fear that 99% of Americans would tell their members of Congress, ‘Do whatever you need to do, privacy be damned, just make sure this does not happen again.’
What Friedman is saying in defending limited surveillance programs is that unless you make a hard compromise with the federal government, then the alternative very well may be to give it a license to look at anyone, at any email, at any phone call, after the next catastrophe. That would be the natural reaction and the wrong decision. The better course, by far, is to work out an agreement now that would authorize the government to mine this data and then go to a judge to get a warrant to look at it under rules outlined by Congress.
Common Questions about Critics and Defenders of Web Surveillance Programs
William Banks, one of the critics of Web surveillance programs offered a critique saying that the government focuses more on transactional information. Wholesale interception happens via this transactional data.
The critics of Web surveillance programs are concerned that large data warehouses could be created via these programs, specifically by XKeyscore.
Thomas Friedman, a critic as well as a defender of Web surveillance programs, supports them despite fears that the government may misuse them. He is far more concerned about 9/11-scale disasters.
