It's official; the government's spying efforts exceeded the legal limits at least once, meaning it is also officially "unreasonable under the Fourth Amendment." The Office of the Director of National Intelligence (DNI) sent a letter [PDF] to Sen. Ron Wyden giving permission to admit that much.
This started with Sen. Wyden requesting that the Office of the Director of National Intelligence (DNI) declassify some statements regarding the Foreign Intelligence Surveillance Act (FISA) enacted by the FISA Amendments Act of 2008 (FAA). Although this FISA power is supposed to sunset in December 2012, in May a new senate bill extended the warrantless wiretapping program for five more years. That vote was regarded as the first step "toward what the Obama administration hopes will be a speedy renewal of an expanded authority under the Foreign Intelligence Surveillance Act to monitor the U.S. e-mails and phone calls of overseas targets in an effort to prevent international terrorist attacks on the country." Before Congress votes, Sen Wyden wants it know more about such surveillance powers.
Wyden believes the FAA of 2008 "has sometimes circumvented the spirit of the law," reported Politico. Although the DNI does not go so far as to admit that, it does not dispute that the Foreign Intelligence Surveillance Court found such massive surveillance to be "unreasonable" on "at least one occasion."
After reviewing Wyden's statements, the DNI wrote "that the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure." According to the letter [PDF] that Danger Room acquired, the DNI agreed to declassify Wyden's three statements that "narrowly confined to addressing the government's use of Section 702."
Sen. Wyden is a member of the Senate Intelligence Committee and knows so much more than the public about the ways and means of government spying. He previously warned the American public would be "stunned" and "angry" if we knew more about how the "secret law" of the Patriot Act is being used to justify surveillance. He also wants us to know more about FISA.
It is on a congressional record that Senator Wyden also said, "I believe that Congress does not have enough information about this law's impact on the privacy of law-abiding American citizens, and because I am concerned about a loophole in the law that could allow the government to effectively conduct warrantless searches for Americans' communications." Wyden objected to the DNI previously stating "it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed" under the FISA Amendments Act. Wyden said, "I am prepared to accept that it might be difficult to come up with an exact count of this number, but it is hard for me to believe that it is impossible to even estimate it."
Sen. Wyden said of extending the FAA of 2008:
I am concerned, of course, that if no one has even estimated how many Americans have had their communications collected under the FISA Amendments Act, then it is possible that this number could be quite large. Since all of the communications collected by the government under section 702 are collected without individual warrants, I believe that there should be clear rules prohibiting the government from searching through these communications in an effort to find the phone calls or e-mails of a particular American, unless the government has obtained a warrant or emergency authorization permitting surveillance of that American.
Section 702, as it is currently written, does not contain adequate protections against warrantless ''back door'' searches.
In 2010, the ACLU received over 900 pages about the FISA Amendments Act (FAA) surveillance power, including a bit about the FISA Section 702 [PDF]. Although redacted, it did "shine some light on the government's interpretation, use, and abuse of the FAA spying power." Even before receiving the documents through a FOIA release, the ACLU said, "Regardless of abuses, the problem with the FAA" is that "the statute itself is unconstitutional. The ACLU has challenged the constitutionality of the FAA in federal court because giving the executive branch the power to conduct dragnet surveillance of Americans' international telephone calls and e-mails en masse, without a warrant, without suspicion of any kind, and with only very limited judicial oversight, violates the Fourth and First Amendments."
Although the declassification of Wyden's three statement are a step toward transparency, it's what we don't know that might hurt us. Instead of simply speculating, we found out that 1.3 million customer cell phone records were requested in 2011 for mobile phone surveillance by federal, state and local law enforcement. It is interesting to note that, as Techdirt reported, Sprint alone claimed to have received "more court orders for wiretaps than various official reports to Congress of how many wiretaps had been sought in total. In other words, either Sprint's definition of 'wiretaps' is different than everyone else's, its number is wrong... or... someone's been lying to Congress."
The NSA has said it would violate our privacy rights to tell us how many American citizens had our privacy invaded. NSA whistleblower Drake said the mentality is that you're automatically suspicious until proven otherwise and whistleblower Binney added the NSA has dossiers on nearly every US citizen. There's no telling how deep the dark rabbit hole truly goes regarding electronic surveillance and warrantless wiretaps. And there's no telling how many times innocent Americans have had their constitutional rights violated by domestic spying.
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Ms. Smith (not her real name) is a freelance writer and programmer with a special and somewhat personal interest in IT privacy and security issues. Smith has a diverse background in information technology, programming, web development, IT consulting, and information security. She focuses on the unique challenges of maintaining privacy and security, both for individuals and enterprises. She has worked as a journalist and has also penned many technical papers and guides covering various technologies. Smith is herself a self-described privacy and security freak.
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