The
NSA Has Taken Over the
Internet Backbone. We're
Suing to Get it Back
By
Patrick C. Toomey,
Staff Attorney, ACLU
National Security
Project
March
10, 2015 "ICH"
- "ACLU"
- Every time you email
someone overseas, the
NSA copies and searches
your message. It makes
no difference if you or
the person you're
communicating with has
done anything wrong. If
the NSA believes your
message could contain
information relating to
the foreign affairs of
the United States –
because of whom you're
talking to, or whom
you're talking about –
it may hold on to it for
as long as three years
and sometimes much
longer.
A
new ACLU lawsuit
filed today challenges
this dragnet spying,
called "upstream"
surveillance, on behalf
of Wikimedia and a broad
coalition of
educational, human
rights, legal, and media
organizations whose work
depends on the privacy
of their communications.
The plaintiffs include
Amnesty International
USA, the National
Association of Criminal
Defense Lawyers, and The
Nation magazine, and
many other organizations
whose work is critical
to the functioning of
our democracy.
But
the effect of the
surveillance we're
challenging goes far
beyond these
organizations. The
surveillance affects
virtually every American
who uses the Internet to
connect with people
overseas – and many who
do little more than
email their friends or
family or browse the
web. And it should be
disturbing to all
of us, because free
expression and
intellectual inquiry
will wither away if the
NSA is looking over our
shoulders while we're
online.
The
world
first learned of
the existence of
upstream surveillance
from whistleblower
Edward Snowden's spying
revelations in June
2013. Since then,
official disclosures and
media
reports have
shown that the NSA is
routinely seizing and
copying the
communications of
millions of ordinary
Americans while they are
traveling over the
Internet. The NSA
conducts this
surveillance by tapping
directly into the
Internet backbone inside
the United States – the
network of high-capacity
cables and switches that
carry vast numbers of
Americans'
communications with each
other and with the rest
of the world. Once the
NSA copies the
communications, it
searches the contents of
almost all international
text-based
communications – and
many domestic ones as
well – for search terms
relating to its
"targets."
In
short, the NSA has cast
a massive dragnet over
Americans' international
communications.
Inside
the United States,
upstream surveillance is
conducted under a
controversial spying law
called the FISA
Amendments Act, which
allows the NSA to target
the communications of
foreigners abroad and to
intercept Americans'
communications with
those foreign targets.
The main problem with
the law is that it
doesn't limit which
foreigners can be
targeted. The NSA's
targets may include
journalists, academics,
government officials,
tech workers,
scientists, and other
innocent people who are
not connected even
remotely with terrorism
or suspected of any
wrongdoing. The agency
sweeps up Americans'
communications with all
of those targets.
And,
as our lawsuit explains,
the NSA is exceeding
even the authority
granted by the FISA
Amendments Act. Rather
than limit itself to
monitoring Americans'
communications with the
foreign targets, the NSA
is spying on
everyone, trying to
find out who might be
talking or reading
about those
targets.
As a
result, countless
innocent people will be
caught up in the NSA's
massive net. For
instance, a high school
student in the U.S.
working on a term paper
might visit a foreign
website to read a news
story or download
research materials. If
those documents happen
to contain an email
address targeted by the
NSA – like this news
report does –
chances are the
communications will be
intercepted and stored
for further scrutiny.
The same would be true
if an overseas friend,
colleague, or contact
sent the student a copy
of that news story in an
email message.
As
former NSA Director
Michael Hayden recently
put it, "[L]et
me be really clear. NSA
doesn't just listen to
bad people. NSA listens
to interesting people.
People who are
communicating
information."
That
doesn't sound like much
of a limitation on the
NSA's spying – and it's
not. Like many
Americans, the
plaintiffs in our
lawsuit communicate with
scores of people
overseas who the NSA
likely finds
"interesting." For
instance, researchers at
Human Rights Watch
depend on foreign
journalists, lawyers,
political dissidents,
and witnesses to human
rights abuses for
information crucial to
their advocacy and
reporting back home.
Wikimedia communicates
with millions of people
abroad, many of whom
read or contribute to
Wikipedia, one of the
largest repositories of
human knowledge on
earth. We know, thanks
to Edward Snowden, that
the NSA is
interested in
what some of those users
are reading.
The
fact that upstream
surveillance is
supposedly focused on
international
communications is hardly
a saving grace.
Americans spend more and
more of their lives
communicating over the
Internet – and more and
more of those
communications are
global in nature,
whether we realize it or
not. An email from a
woman in Philadelphia to
her mother in Phoenix
might be routed through
Canada without either
one knowing it.
Similarly, companies
like Microsoft and
Google often store
backup copies of their
U.S. customers' emails
on servers overseas,
again with hardly anyone
the wiser. The NSA is
peeking inside virtually
all of these.
Our
plaintiffs have had to
go out of their way to
take measures, sometimes
at a high cost, to
protect their
communications from
their own government.
Despite these
precautions, the
chilling effect is
palpable. NSA
surveillance makes it
harder for the
plaintiffs to gather
information from sources
who believe that by
sharing information over
the Internet, they are
also sharing it with the
U.S. government and the
intelligence agencies it
partners with. The work
of human rights and
free-knowledge
organizations is
profoundly undermined by
this unconstitutional
surveillance, and we're
all worse off.
Upstream
surveillance flips the
Constitution on its
head. It allows the
government to search
everything first and ask
questions later, making
us all less free in the
process. Our suit aims
to stop this kind of
surveillance. Please
join our effort to
reform the NSA.
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