In the wake of Edward Snowden’s 2013 disclosure on National Security Agency (NSA) surveillance programs, panelists at a discussion yesterday entitled The Global Impact of Mass Surveillance discussed the history, legality, and future of U.S. government surveillance programs. The panel was held at the Chicago Museum of Contemporary Art and included law school professor Geoffrey Stone. The panelists suggested that mundane communications of American citizens are accessible to the U.S. government under current law.
The lecture was hosted by the Chicago chapter of Human Rights Watch, an international non-profit organization. In addition to Stone, the panel included Laura Pitter, the senior national security researcher for Human Rights Watch’s U.S. program, and Patrick Toomey, a staff attorney in the American Civil Liberties Union’s National Security project.
Section 215 of the Patriot Act and Section 702 of the 2008 Foreign Intelligence Surveillance Act (FISA) served as justification for the NSA’s surveillance programs. Pitter emphasized the difference between American citizens and foreign nationals in the eyes of the laws. Section 215 grants federal authorities access to the metadata of all U.S. citizens which is held by third parties. Pitter defined metadata as “data of data, such as the timestamps of cell phone calls or records that an e-mail was sent,”and cited Google as an example of a third party.
Section 702 permits federal authorities to access data including the actual content of e-mails or phone calls of foreign nationals, in addition to metadata, for national security purposes, Pitter said. Section 702 also includes foreign data tied to a U.S. citizen, such as a phone call between someone in the U.S. and someone in another country. Pitter then suggested that Section 702 may be readily used by the government for purposes irrelevant to national security.
“[Section 702] could be interpreted to mean that me talking over the phone with a human rights activist in India about issues of dissidence is of national security interest. We just don’t know what [the NSA] is covering,”Pitter said.
Toomey suggested that the real-world structure of Internet storage effectively allows the government to access both data and metadata of U.S. citizens.
“As a U.S. citizen, you may think that your communications are relatively protected. But what if you use Gmail to send your e-mails? Google has servers in the United Kingdom; if Google stores your e-mails there, the U.S. government can access them,”Toomey said.
After Pitter and Toomey spoke regarding their concerns of potential government abuse of Sections 215 and 702, Stone presented what he sees as the NSA’s rationale for instituting its surveillance programs in the first place.
“In the fight against international terrorism, the U.S. government is like a soccer goalie. The opposing players—the terrorists—are invisible, because they do not wear uniforms. The ball, a terrorist attack, is also invisible. If the ball hits the net, 3,000 people die. As a result, the government is trying to do everything it can given all of these disadvantages. The search for any signs of movement, any bend in the grass on the field; this is what surveillance seeks to accomplish,”Stone said.
Stone presented the U.S. government’s ability to access the personal information of U.S. citizens as part of a historical continuum, and suggested that the Supreme Court will push back against existing law.
Stone said that in the ’20s, the FBI used wiretaps under the justification that “physical space”was not being searched. He said that the Supreme Court later rejected this idea. Then, in the ’70s, the government attempted to obtain information on U.S. citizens from third parties, again with the justification that it did not constitute a search. Again, the government’s legal reasoning was rejected by the Supreme Court.
“The question is whether [NSA surveillance] violates the Fourth Amendment, which protects against unreasonable search and seizure. But what is a search?,”he asked. “Now, will the Supreme Court include metadata in its definition of a search? I think that it will.”
