ACLU: NSA’s PRISM Program is Doubly Illegal

The executive branch’s Privacy and Civil Liberties Oversight Board (PCLOB) issued a report back in December that was devastating to the Obama administration’s claims that NSA surveillance is both legal and effective in providing security. The report concluded that, in fact, the bulk collection of phone records under Section 215 of the FISA Amendments Act (FAA) doesn’t yield valuable intelligence and violates the rights of Americans.

The PCLOB had sought input from the American Civil Liberties Union (ACLU) to complete that report. Now, another report is in the works that may be even more devastating to the defenders of limitless NSA surveillance. The new report will focus on the PRISM program which taps into servers of internet providers and tech companies to directly spy on the content of user data. The FAA supposedly authorizes this sweeping surveillance in its Section 702.

But the ACLU is arguing that programs like PRISM are doubly illegal. In talking with the PCLOB, the ACLU is arguing not only that the NSA’s implementation of Section 702 authorities violates what the statute actually authorizes, but also that the FAA itself is illegal in that it violates the Constitution.

In testimony provided to the board in advance of today’s meeting, the ACLU argues — as it has in litigation, notably in Amnesty International USA v. Clapper and United States v. Muhtorov — that the FAA is unlawful. The statute violates the Fourth Amendment because it permits the warrantless surveillance of American’s international communications on a truly massive scale. The testimony also makes the case that the government’s implementation of the FAA — about which we’ve learned much over the past nine months — violates the text of the statute itself:

First, while the statute was intended to augment the government’s authority to collect international communications, the NSA’s targeting and minimization procedures give the government broad authority to collect purely domestic communications as well. Second, while the statute was intended to give the government authority to acquire communications to and from the government’s targets, the NSA’s procedures also permit the government to acquire communications “about” those targets. And, third, while the statute prohibits so-called “reverse targeting,” the NSA’s procedures authorize the government to conduct “backdoor” searches of communications acquired under the FAA using selectors associated with particular, known Americans. Thus, even if the statute itself is lawful, the NSA’s implementation of it is not.

A significant part of the public defense of the NSA’s spying apparatus is that there have been no deliberate violations of the law. Sen. Dianne Feinstein said in August, for example, that critics have “never identified an instance in which the NSA has intentionally abused its authority to conduct surveillance for inappropriate purposes.” In December, President Obama insisted “There had [sic] not been evidence and there continues not to be evidence that the particular program had been abused in how it was used.” NSA chief Gen. Keith Alexander claimed that “no one has wilfully or knowingly disobeyed the law or tried to invade your civil liberties or privacy.”

As the ACLU and others have held, that is just not true. One is reminded of the Washington Post report in August on an internal audit that found the NSA “has broken privacy rules or overstepped its legal authority thousands of times each year since Congress granted the agency broad new powers in 2008.” Here’s ProPublica’s thorough rebuttal of arguments like Feinstein’s, Obama’s, and Alexander’s.

In fact, the Foreign Intelligence Surveillance Court has reprimanded the NSA for abuses both in warrantless surveillance targeting people abroad, and in bulk domestic phone records collection.

In 2011, the FISA Court found that for three years, the NSA had been collecting tens of thousands of domestic emails and other communications in violation of the Fourth Amendment. The court ordered the NSA to do more to filter out those communications. In a footnote, Judge John D. Bates also chastised the NSA for repeatedly misleading the court about the extent of its surveillance. In 2009 – weeks after Obama took office – the court concluded the procedures designed to protect the privacy of American phone records had been “so frequently and systemically violated that it can fairly be said that this critical element of the overall … regime has never functioned effectively.”

The NSA told the court those violations were unintentional and a result of technological limitations. But the NSA’s own inspector general has also documented some “willful” abuses: About a dozen NSA employees have used government surveillance to spy on their lovers and exes, a practice reportedly called “LOVEINT.”

The only question left is…will the NSA and the executive branch be held legally accountable for violating the law? I’m not holding my breath.