SEPTEMBER 3, 2020
By Aaron Kesel
A federal appeals court has ruled that the NSA’s historic controversial domestic spying program was illegal, one of the same programs NSA whistleblower Edward Snowden released details on to journalists in 2013. The landmark decision added that the spying program was even potentially unconstitutional.
The court’s ruling was written by Judge Marsha Berzon, who expressed that the Foreign Intelligence Surveillance Act, or FISA, didn’t allow for the bulk collection of phone users’ call records, as the U.S. government falsely claimed at the time.
The metadata collection exceeded the scope of Congress’s authorization,” she wrote in her ruling.
The main problem, according to Berzon, was that FISA did not allow for bulk collection, only targeted collection of known suspects. The law “required the government to make a showing of relevance to a particular authorized investigation before collecting the records,” Berzon wrote.
Judge Berzon went on to state that there is no evidence that the spying program actually did anything to prevent a single case of terrorism, and that U.S. officials misled the public about the program’s effectiveness.
“To the extent the public statements of government officials created a contrary impression, that impression is inconsistent with the contents of the classified record,” she wrote.
Snowden posted about the ruling, saying that, “I never imagined that I would live to see our courts condemn the NSA’s activities as unlawful and in the same ruling credit me for exposing them. And yet that day has arrived.”https://platform.twitter.com/embed/index.html?creatorScreenName=activistpost&dnt=true&embedId=twitter-widget-1&frame=false&hideCard=false&hideThread=false&id=1301251393832050688&lang=en&origin=https%3A%2F%2Fwww.activistpost.com%2F2020%2F09%2Fhistoric-judge-rules-nsa-domestic-spying-exposed-by-edward-snowden-was-illegal.html&siteScreenName=activistpost&theme=light&widgetsVersion=219d021%3A1598982042171&width=550px
Snowden quickly rose to prominence in 2013, after leaking classified information on widespread warrantless NSA surveillance programs like XKeyscore and PRISM to The Guardian and The Washington Post. In fact, the first Snowden leak was a FISC order issued to Verizon under Section 702 that required the company to turn over all of its calling records to the NSA.
FISA was enacted in 1978 as a response to illegal domestic surveillance operations revealed by two Senate committees in the 1970s, including President Richard Nixon’s use of federal intelligence agencies to monitor his political opponents. It was brought into law “to authorize electronic surveillance to obtain foreign intelligence information.”
The law requires the government to obtain a warrant from the Foreign Intelligence Surveillance Court before setting up an electronic or physical wiretap targeted at foreigners and foreign agents.
Congress amended FISA in 2007 to let the government wiretap communications that either begin or end outside the United States jurisdiction without Foreign Intelligence Surveillance Court (FISC) approval; in a stronger 2008 overhaul, they further limited that power to non-U.S. persons. The last reauthorization of the Act was in 2012, which set the current expiration date of Dec. 31, 2017.
The FISA law has long been criticized by privacy and civil liberties advocates like the EFF who say the order allows broad, intrusive spying without oversight. The section first gained renewed attention following the 2013 disclosures by former National Security Agency contractor Edward Snowden that the agency carried out widespread monitoring of emails and other electronic communications through PRISM, XKeyscore, Upstream and other NSA surveillance programs.
Activist Post covered XKeyscore and PRISM in extensive detail when the revelations happened. XKeyscore, which in 2008 was on 750 servers on 150 sites around the globe, served as the point of entry for most of the information that was collected by the NSA.
NSA agents would easily be able to gather information using XKeyscore’s system the operator could then trawl through billions of emails and online chat sessions, or check sites visited by specific computers by using IP addresses.
It’s worth noting that this author recently wrote an article on Palantir, the company that was accused of providing the technology that enables NSA’s mass surveillance PRISM. In that article, we went into extensive detail about Palantir’s history as a company and the development of software used at Fusion Centers across the U.S.
Palantir’s software in many ways is similar to the Prosecutor’s Management Information System (PROMIS) stolen software Main Core and may be the next evolution in that code, which allegedly predated PRISM. In 2008, Salon.com published details about a top-secret government database that might have been at the heart of the Bush administration’s domestic spying operations. The database known as “Main Core” reportedly collected and stored vast amounts of personal and financial data about millions of Americans in event of an emergency like Martial Law.
The Patriot Act, which enabled the spying, was just renewed last year in December for three months of re-authorization (with zero reform) in the continuing resolution bundled and buried in a stopgap government funding bill. A fact which wasn’t reported by any mainstream media outlet to this writer’s knowledge, including NPR, Politico, and CNBC, among websites, checked.
While most focus on the “terrifying authoritarian surveillance powers” that the act gives the Trump administration, they miss the provision for indefinite detention. But then again, there’s a second provision that can be used for indefinite detention under the National Defense Authorization Act (NDAA), and the U.S. also has the Continuity Of Government (COG) program under REX 84, along with PROMIS’ Main Core lists of dissidents to be rounded up in case of emergency, as this writer has written about extensively for his Octopus PROMIS series.
Snowden’s documents made no mention of Main Core to this writer’s knowledge, and according to sources only a small amount of people even know that the domestic database exists. Some of the programs that Snowden did leak include the following – MUSCULAR, CO-TRAVELER, Dishfire, and Tailored Access Operations.
Trump has expanded warrantless surveillance, enabling his administration federal agencies and local police to use cell phone contact tracing to track individuals for their own reasons. Further, the Trump administration directly asked Congress to re-authorize the defunct law Section 215 that let the N.S.A. gain access to the logs of Americans’ phone and text records. Thankfully, Section 215 expired last March, after the House and Senate failed to agree on the passing of the USA FREEDOM Reauthorization Act.
If that wasn’t enough, beyond the CV pandemic, the Trump administration has created a new national security watchlist that includes Americans who have no connection to terrorism. The new TOC (Transnational Organized Crime) watchlist, was authorized through a classified Attorney General order and launched in 2017, as Activist Post previously reported.
This ruling against the NSA is a huge win for liberty focused individuals everywhere, even if Michael Hayden and James Clapper will never be arrested for lying in front of Congress about NSA spying on Americans. American Civil Liberties Union (ACLU) senior staff attorney Patrick Toomey called the ruling a victory for privacy rights. However, don’t think we have won the full-fledged war against surveillance, the government still has a range of tools, as EFF notes. These include other provisions of FISA as well as surveillance authorities used in criminal investigations
“The decision also recognizes that when the government seeks to prosecute a person, it must give notice of the secret surveillance it used to gather its evidence. This protection is a vital one given the proliferation of novel spying tools the government uses today,” Toomey said, according to CNet.
Aaron Kesel writes for Activist Post.