127.2 - Revelations of NSA spying: July

Revelations of NSA spying: July

Come July, we started to learn more about how the FISA court, the secret court whose very secrecy somehow creates transparency in government, has turned itself into what the New York Times called

almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come.

In more than a dozen classified rulings, the court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage, and cyberattacks.

The court has embraced multiple ways of expanding the powers of the spooks to poke, prod, and pry into our lives, multiple ways to justify giving such all but unlimited spying authority to the NSA and other spy agencies in spite of both domestic and international law as well as the Constitution. It turns out one "reason," one justification, is that just like Barack Obama apparently has his own definition of "transparent" and Clapper claimed he didn't lie to Congress because he has his own definition of "collection," so too does the FISA court have its own definition of "relevant" - as in when evidence is "relevant" to an on-going investigation. The Supreme Court ruled in 1991 that "relevant" means there is a "reasonable possibility" it could produce important information. The FISC, however, apparently charmed by the government's argument that, as one official put it, "you can't find a needle in a haystack unless you have a haystack," decided that essentially all information that can be gathered, everything, is by definition "relevant."

For another example, it has expanded the use of the so-called “special needs” doctrine to effectively exempt the collection and examination of our communications data from the requirements of the Fourth Amendment. The "special needs" doctrine was invented in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that this supposedly minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger, in that case railroad crashes. The FISA court decided that this doesn't just apply to specific individual cases - it applies everywhere to everyone.

The court got nearly 1800 requests from the spies for surveillance orders last year. It approved every single one of them. Which could be yet another definition of "transparency."

We learned, too, that there are multiple, independent surveillance programs with names like EvilOlive, ShellTrumpet, MoonLightPath, and Spinneret. And one called X-Keyscore that, with just an email address and a few keystrokes, can give a data analyst access to nearly everything a user does on the Internet – from chat sessions to email to browsing.

Edward Snowden, whose release of documents made much of this knowledge possible, said “I, sitting at my desk could wiretap anyone, from you or your accountant, to a federal judge or even the president, if I had a personal email.”

The program allows analysts, with no prior authorization, to search through vast databases containing emails, online chats and the browsing histories of millions of individuals.

Sources:
http://crooksandliars.com/susie-madrak/secret-fisa-court-widens-power-nsa-sp
http://www.nytimes.com/2013/07/07/us/in-secret-court-vastly-broadens-powers-of-nsa.html?_r=1&
http://www.theatlanticwire.com/politics/2013/07/easy-way-government-get-around-secrecy-rules-change-them/66913/
http://techcrunch.com/2013/07/31/nsa-project-x-keyscore-collects-nearly-everything-you-do-on-the-internet/?icid=maing-grid7%7Chtmlws-sb-bb%7Cdl1%7Csec1_lnk3%26pLid%3D351747
http://www.theguardian.com/world/2013/jul/31/nsa-top-secret-program-online-data