Stop Upstream Surveillance: The NSA is Overreaching, and Congress Can Respond

Author: Alexander Spaulding, Associate Member, University of Cincinnati Law Review

On December 31, 2017, the FISA Amendments Act of 2008 (FAA) is set to expire.[1] The Foreign Intelligence Surveillance Act of 1978 (FISA) enumerated powers and checks on the federal government’s ability to conduct surveillance and investigation on foreign parties.[2] FISA sought to balance the need of protecting civil liberties with the need for ensuring national security by allowing the government to wiretap foreign powers abroad to obtain foreign intelligence.[3] The 2008 Act amended FISA and broadened the government’s power to target foreign communications without warrants.[4] However, the government has used loopholes in the Act to justify mass, warrantless surveillance of American citizens’ international communications.[5] The government’s surveillance of Americans has been a contested and salient topic since 2005, when the New York Times exposed that the Bush administration had authorized the National Security Agency (NSA) to wiretap American citizens.[6] The surveillance then became one of the largest political issues of the decade, when Edward Snowden disclosed that the NSA had intercepted over 160,000 private conversations, most between ordinary Americans, not legally-targeted foreigners.[7] Many Americans are uncomfortable with the amount of information that the NSA has collected and continues to access. But beyond their discomfort, the American people have certain constitutional rights—most prominently the Fourth Amendment right against unreasonable searches and seizures—that the NSA violates through its surveillance. Fortunately, in the wake of the FAA’s inevitable expiration, current litigation is challenging the NSA’s practices, pressuring Congress, to reevaluate the Act and protect our rights.

Upstream Surveillance and Wikipedia

Today, certain interest groups are still fighting for the American rights that congress violates through the FAA. Notably, the Wikimedia Foundation, the company that runs Wikipedia, with the American Civil Liberties Union (ACLU), is suing the NSA for its unsavory surveillance practices, alleging that the NSA impinges on Americans’ constitutional rights.[8] The ACLU is primarily concerned with the NSA’s surveillance tactic known as “upstream surveillance.”[9] Upstream surveillance involves bulk searching of large quantities of internet communication from an “internet backbone,” the data routes between large interconnected areas of the internet.[10] Essentially, the NSA pulls its information in large quantities from a junction where virtually all text-based information flows to foreign countries.[11] In Wikipedia’s case, the writers and editors (roughly 75,000 contributors each month) communicate with foreigners through the sites global reach, every time they publish to the site.[12]

Wikimedia Foundation v. NSA

Wikimedia filed suit against the NSA in March of 2015, in the U.S. District Court for the District of Maryland.[13] However, the case was dismissed on October 23, 2015, when the court ruled that the Wikimedia Foundation and co-plaintiffs lacked standing.[14] The district court held that the plaintiffs did not demonstrate the requisite proof that they had been subject to or harmed by the upstream surveillance.[15] The court received criticism for blinding itself to NSA surveillance,[16] and for holding plaintiffs to unreasonable standards of proof against a clandestine entity such as the NSA.[17] The case is set for appeal in the Fourth Circuit in December 2016.[18]

Wikimedia’s case relies strongly on the constitutional arguments described above. Wikimedia argues, “Through its general, indiscriminate searches and seizures of the plaintiffs’ communications, upstream surveillance invades their Fourth Amendment right to privacy . . .  and exceeds the statutory limits of the FAA itself.”[19]

The Appeal: Relevant Litigation

Similar to the Wikimedia case, the ACLU previously litigated a challenge to the NSA’s surveillance conducted under the FAA–Clapper v. Amnesty[20]. In a 5-4 vote, the Supreme Court dismissed the case in February 2013, on the grounds that the plaintiffs could not prove they had been spied on.[21] The ruling helped push Edward Snowden to ultimately disclose the NSA’s surveillance practices, including upstream surveillance.[22] The existence of upstream surveillance was later confirmed by the government,[23] which bodes well for Wikimedia in the upcoming appeal.

Furthermore, a recent Third Circuit decision, though only persuasive authority, provides a promising result for the Wikimedia plaintiffs. In Schuchardt v. President of the United States,[24] the court found that the plaintiffs had standing to challenge PRISM collection—a type of mass surveillance conducted under the same alleged authority as upstream surveillance.[25] In the wake of Edward Snowden’s disclosures and the Schuchardt decision, Wikimedia’s case is more likely to be heard in court. However, Wikimedia still must prove that the NSA is intruding upon American constitutional rights.

Constitutional Argument: The Fourth Amendment

Wikimedia and the ACLU contend that the bulk searching of upstream surveillance makes it different from other forms of surveillance, and more clearly unconstitutional.[26] The plaintiffs’ strongest argument is that the bulk searching violates the Fourth Amendment.

The Fourth Amendment protects against unreasonable searches and seizures. There is substantial jurisprudence regarding searches and seizures in an electronic surveillance context, beginning with the seminal Fourth Amendment case—Katz v. United States.[27] In Katz, the FBI attached a microphone outside a phone booth and recorded the defendant illegally gambling across state lines. While there was no physical intrusion upon the defendant, the court found that eavesdropping on the defendant was a search, and that the search was unreasonable because the defendant was in the privacy of a phone booth—where he would not expect his conversations to be public. Justice Harlan’s concurrence in Katz, later formally adopted in Smith v. Maryland,[28] is the primary test for determining whether an individual has a right to privacy. Harlan explained that individuals have a constitutional right to privacy when (1) they have taken subjective steps to demonstrate that they believe they are in private, and (2) that society is objectively ready to accept that the individuals’ expectations of privacy are reasonable.[29] In Katz, the defendant took the subjective steps of entering and closing the door of a phone booth to take his call, which readily demonstrated that he did not wish to have a public conversation. Furthermore, society is ready to accept that “an enclosed telephone booth is an area where, like a home, and unlike a field, a person has a constitutionally protected reasonable expectation of privacy.”[30]

In the case of upstream surveillance, as well as any form surveillance upon private electronic conversations, the courts must apply a Katz analysis to determine if the surveillance violates a reasonably expected right to privacy. The government argues that American citizens forfeit their right to privacy by assuming the risk that the person they are communicating with may be surveilled under the FAA.[31] However, the similarity of the communications collected by upstream surveillance to the communications which are constitutionally protected by a right to privacy, offers a strong argument that society is ready to recognize that such communications are private.

The bulk searching of upstream surveillance is comparable to other forms of constitutionally prohibited government communication surveillance.[32] Under the Fourth Amendment, the government may not open and read postal letters, or listen to telephone calls without probable cause or a warrant.[33] In both circumstances, the Fourth Amendment right to privacy protects against suspicion-less searches being used to gather specific information.[34] The communications that are surveilled under upstream surveillance are no different than people’s letters or phone calls. Regardless of who the recipient is, nobody expects nor desires that their communications will be seen by anyone accept the recipient. In short, the NSA’s initial, massive search of the internet backbone is illegal, because the senders of the information have an established right to privacy, and the government cannot have probable cause for such an expansive search.

Conclusion

Despite the strengths of the constitutional argument, Edward Snowden’s disclosures, and the Schuchardt decision, there is no guarantee that Wikimedia will win on appeal. Thus, at least for now, unconstitutional searches may not be stopped by the judiciary. Fortunately, leading into December of next year, Congress will be forced to deal with the issue.  Ultimately, with the pressure of the litigation, the pressure from the public, and the strong constitutional arguments, Congress should be persuaded to greatly amend the FAA if it is renewed, so that unconstitutional upstream searches do not continue.

 

 

 

[1] 112 P.L. 238.

[2] Id.

[3] Donald J. Musch, Civil Liberties and the Foreign Intelligence Surveillance Act, 9 (2003).

[4] 50 USCS § 1881a

[5] See, e.g. James Ball and Spencer Ackerman, NSA loophole allows warrantless search for US citizens’ emails and phone calls, (August 9, 2013), https://www.theguardian.com/world/2013/aug/09/nsa-loophole-warrantless-searches-email-calls; Jacob Gershman, FISA: A Law With Many Loopholes, (Jun 7, 2013),

http://blogs.wsj.com/law/2013/06/07/fisa-a-law-with-many-loopholes/.

[6] James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers without Courts, N.Y. Times, (December 16, 2005), http://www.nytimes.com/2005/12/16/politics/bush-lets-us-spy-on-callers-without-courts.html.

[7] Gellman, Barton; Tate, Julie; Soltani, Ashkan  In NSA-intercepted data, those not targeted far outnumber the foreigners who are, The Washington Post, (July 5, 2014), https://www.washingtonpost.com/world/national-security/in-nsa-intercepted-data-those-not-targeted-far-outnumber-the-foreigners-who-are/2014/07/05/8139adf8-045a-11e4-8572-4b1b969b6322_story.html.

[8] American Civil Liberties Union, WIKIMEDIA V. NSA – CHALLENGE TO UPSTREAM SURVEILLANCE UNDER THE FISA AMENDMENTS ACT, (April 11, 2016), https://www.aclu.org/cases/wikimedia-v-nsa-challenge-upstream-surveillance-under-fisa-amendments-act.

[9] Ashley Gorski and Patrick Toomey, Unprecedented and Unlawful: The NSA’s ‘Upstream’ Surveillance, (September 23, 2016), https://www.aclu.org/blog/speak-freely/unprecedented-and-unlawful-nsas-upstream-surveillance.

[10] Jimmy Wales and Lila Tretikov, Stop Spying on Wikipedia Users, N.Y. Times, (March 10, 2015), http://www.nytimes.com/2015/03/10/opinion/stop-spying-on-wikipedia-users.html.

[11] Id.

[12] Id.

[13]ACLU supra note 8.

[14] Id.

[15] Michelle Paulson and Geoff Brigham, District court grants government’s motion to dismiss Wikimedia v. NSA, appeal expected, (October 23, 2015), https://blog.wikimedia.org/2015/10/23/wikimedia-v-nsa-lawsuit-dismissal/.

[16] Rumold, Mark. Wikimedia v. NSA: Another Court Blinds Itself to Mass NSA Surveillance. Electronic Frontier Foundation, (October 2015), https://www.eff.org/deeplinks/2015/10/wikimedia-v-nsa-another-court-blinds-itself-mass-nsa-surveillance.

[17] Appeal: 15-2560 Doc: 23, available at https://www.aclu.org/sites/default/files/field_document/23._aclu_appeal_brief_2.17.2016.pdf.

[18] Paulson supra note 15.

[19] ACLU supra note 8.

[20] Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013).

[21] Id.

[22] ACLU supra note 8.

[23] Privacy and Civil Liberties Oversight Board, Report on the Surveillance Program Operated Pursuant to Sec7on 702 of the Foreign Intelligence Surveillance Act (July 2, 2014), available at https://www.pclob.gov/library/702-Report.pdf#page=41.

[24] Schuchardt v. President of the United States, No. 15-3491, 2016 U.S. App. LEXIS 18025 (3d Cir. Oct. 5, 2016).

[25] Jim Buatti and Aeryn Palmer, Wikimedia Foundation v. NSA update: appeal hearing scheduled, (October 17, 2016), https://blog.wikimedia.org/2016/10/17/wikimedia-v-nsa-appeal-hearing/.

[26] Gorski, supra note 9.

[27] Katz v. United States, 389 U.S. 347, 88 S. Ct. 507 (1967).

[28] Smith v. Md., 442 U.S. 735, 99 S. Ct. 2577 (1979).

[29] Katz v. United States, 389 U.S. 347, 88 S. Ct. 507 (1967).

[30] Id. at 360.

[31] Andrew Crocker, Government Explains Away Fourth Amendment Protection for Digital Communications, (May 13, 2014), https://www.eff.org/deeplinks/2014/05/government-explains-away-fourth-amendment-protection-digital-communications.

[32] Gorski, supra note 9.

[33] Id.

[34] Id.

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