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America is listening | The World Weekly

In 2013, Edward Snowden’s leaked revelations about the massive surveillance programme being led by US intelligence shook the world. The mountain of allegations included that the National Security Agency (NSA) had eavesdropped on the communications of German Chancellor Angela Merkel, spied on at least 38 foreign embassies and missions, and collected and stored billions of pieces of data such as text message content from individuals around the world.

A partial reckoning followed in the form of the 2015 US Freedom Act, which sought to reel in some of the excesses of post-9/11 intelligence gathering under the 1978 Foreign Intelligence Surveillance Act (FISA). Bulk collection of the records of Americans’ Internet and telephone communications – known as metadata – was banned. 

Instead, records of phone and text message communications could only be collected “two hops” from the original targeted device. For example, if the NSA targeted Phone A and recorded details of a call with Phone B (hop one), it is then allowed to go on to log calls made by B to other numbers (hop two).

The Freedom Act also mandated greater oversight over FISA, including a requirement for annual reports of statistics concerning US surveillance. 

On May 4, the Office for the Director of National Intelligence (ODNI) released the latest such report for calendar year 2017. It revealed that the NSA collected 534 million records of phone and text message communications, basic information such as the numbers used but not the content of the communication, from US network providers – compared to 151 million in 2016.

To gain this large volume of data, just 40 people were targeted.

The report offers numerous caveats for these figures, including the possibility of duplicated records and that records from past orders could continue to be yielded in 2017. “We expect it will continue to fluctuate from year to year,” Alex Joel, ODNI chief civil liberties officer, told the New York Times.

Civil liberties groups, however, voiced alarm at the scale of this data collection. “It is disturbing”, Sarah St. Vincent, researcher and advocate on US surveillance at Human Rights Watch, told The World Weekly. Even from communication records, intelligence agencies can infer personal details like religious and political affiliation, allowing them to build an “incredible intimate portrait of an awful lot of people”.

Section 702

A major portion of the report concerns the warrantless surveillance of non-US citizens, under a portion of FISA known as Section 702. Around 129,000 non-US citizens were monitored under Section 702 in 2017 – up from 106,469 in 2016.

Section 702 “authorises the Intelligence Community to target the communications of non-US persons located outside the United States for foreign intelligence purposes”, according to the US House Intelligence Committee website. The US government can, therefore, without a warrant obtain emails or phone calls of a non-US target believed to be in possession of pertinent “foreign intelligence information”.

Members of the intelligence community laud the programme. “Section 702 has proven itself a critical authority for obtaining information useful to the protection of US national security,” Joshua Geltzer, former senior director for counter-terrorism on former President Barack Obama's National Security Council, told TWW.

Amongst many credited successes, Section 702 orders gleaned information that stopped a planned attack on the New York City subway system in 2009, and helped foil a potential nightclub attack in Istanbul in 2017.

Yet there are areas of controversy. The US constitution requires a warrant to specifically target Americans. But if an American communicates with a non-US individual who is being monitored under Section 702, the former’s emails and other such communications will also be harvested.

This week’s report detailed that metadata on Americans collected under Section 702 was queried 16,792 times in 2017. The total number of Americans whose data had been incidentally collected was not listed. In 2017, US Director of National Intelligence Dan Coats refused to provide this figure, calling it “infeasible”.

Director of National Intelligence Dan Coats (L) testifies to the Senate Armed Services Committee in March 2018.

The report highlighted that FBI agents did not examine the Section 702 database for Americans’ communications for a criminal case unrelated to foreign intelligence in 2017 – nor use section 702 data on Americans to open a criminal investigation where it did not pertain to national security.

However, the omission of how often the FBI followed up on Section 702 data on Americans when foreign intelligence or national security interests were identified is a major concern, Jake Laperruque, senior counsel at the Constitution Project of the Project of Government Oversight, told TWW. “Warrantless FISA surveillance could become a significant domestic law enforcement tool in the future while the public is left entirely in the dark.”

The US intelligence community maintains that Section 702 data is rarely used in domestic law enforcement.

Big picture

When speaking to TWW, experts widely agreed that Executive Order 12333 was a major gap in the report. This order provides broad powers to collect data content outside US borders for foreign intelligence purposes without a warrant and with very little judicial or congressional oversight. 

However, a Human Rights Watch report in 2017 found that the order’s “counterintelligence” provisions were allegedly being used to target Americans regarded as “homegrown violent extremists”, people who “may not have a specific connection to a particular foreign terrorist group but are engaged in violent extremist activities”.

US intelligence have not provided the legal justifications or scope of this policy.

There is an additional risk, say some civil rights groups, that potentially discriminatory designations are used to expand unconstitutional surveillance of ‘threatening’ US citizens. Foreign Policy reported earlier this year on the FBI’s new use of the terrorism classification of “black identity extremist” to describe those who may resort to violence against “perceived racism and injustice in American society”. Using this category, opponents argue, young black men are being unconstitutionally targeted for domestic surveillance simply for exercising their 1st Amendment rights to free speech.

Charges against Christopher Daniels, the first high-profile arrest under this programme, were dropped in Texas this week. The federal prosecution against him for illegally possessing firearms had been partially predicated on social media posts where he criticised law enforcement and threatened far-right activists.

Despite concerns amongst Republican majorities in Congress about surveillance connected to the investigation into Russian interference in the 2016 US presidential election, “there is limited political appetite for wholesale reform,” says Mr. Laperruque. Section 702, for example, was reauthorised for another six years in January 2018.

In our increasingly technologically connected world, the reinterpretation of individual constitutional rights of US citizens in pursuit of “national security” or “foreign intelligence” goals seems set to continue. That says nothing for the rest of the world, where the NSA can carry out surveillance practices against non-US persons regarded as unconstitutional in America.

“This is truly everyone’s issue,” says Ms. St. Vincent. “If you ever paused to put something into Google because you thought someone might be watching, this issue has affected you. We cannot forget; the things the government finds threatening today might not be what they find threatening tomorrow.”

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