Confused about this week's deluge of news about the NSA's secret surveillance programs? Start here.
It began on Wednesday, with the revelation that Verizon had received a secret court order requesting it to give the National Security Agency access to the metadata of all Americans' phone calls. In a few hours, reports confirmed it was a standard, routine, ongoing, and recurring practice, one which is reauthorized every three months.
On Thursday, another secret NSA program called PRISM was revealed. The program involves some of the larger Internet companies like Google, Facebook, Microsoft and Apple, which have all apparently collaborated with the government to wiretap their foreign users communications.
Shortly after, another report confirmed it wasn't just Verizon — AT&T and Sprint have been receiving the same orders too.
Here's our FAQ on the two separate programs.
What is the phone call metadata collection program?
This allows the NSA to gather information on all phone calls (at least all Verizon, AT&T and Sprint calls) made in the United States. It doesn't allow the NSA to listen on the calls. The agency doesn't receive the names of the customers. All information is anonymous.
All the spy agency gets is telephone numbers, duration of the calls, the unique serial numbers of the cellphones, and potentially the location of the call participants.
This information is provided daily to the NSA by the telecom companies for periods of three months. According to reports, this has been going on for seven years. The Verizon order is similar to one first issued by the Foreign Intelligence Surveillance Court in 2006, an order which is reissued routinely every 90 days.
This was confirmed by Senators Dianne Feinstein (D.-Calif.) and Saxy Chambliss (R.-Ga.). "As far as I know, this is an exact three-month renewal of what has been the case for the past seven years," Feinstein said.
Why is this a big deal?
Authorities have been quick to discount the importance of this type of data. But privacy experts and advocates argue that such an extensive and continuous collection can be even more revealing than spying directly on phone calls.
"Even without intercepting the content of communications, the government can use metadata to learn our most intimate secrets – anything from whether we have a drinking problem to whether we’re gay or straight," Jay Stanley and Ben Wizner, from the American Civil Liberties Union, wrote on Reuters.
Jane Mayer, at The New Yorker, has a great piece on how much metadata can reveal, and how wrong is to think that it's not as intrusive as tapping phone calls.
What's the legal basis for this program?
This program legally stems from section 215 of Patriot Act, a controversial portion of the law. The section expands the Foreign Intelligence Surveillance Act, a law that was passed in 1978 but has been significantly expanded after 9/11.
Section 215 authorizes the U.S. government to request businesses to turn over "the production of any tangible things (including books, records, papers, documents, and other items)," a long as it needs the information for an investigation "to protect against international terrorism or clandestine intelligence activities."
This provision allows the government to investigate both American citizens and non-American citizens. The only difference is that American citizens can't be investigated solely on the basis of activities protected by the First Amendment. The NSA shouldn't investigate an American just based on what books he or she reads, for example.
Authorities don't need to show probable cause. They don't even need to show grounds that the person targeted is a criminal — in other words, there's no need for a warrant, which is normally required in search and seizure cases. All the government needs to do is convince the secretive Foreign Intelligence and Surveillance Court that that the information sought is relevant to a terrorism investigation.
Section 215 also comes with a gag clause. Businesses who receive the order are legally prevented form disclosing its existence to anybody — including the subject of the order. That's why so few cases have been disclosed.
According to a Congressional Research Service report from 2012, Section 215 "both enlarged the scope of materials that may be sought and lowered the standard for a court to issue an order compelling their production."
What do officials say about this program?
The White House, as well as Congress members defended the program, arguing that it's not invading privacy since it doesn't allow authorities to listen in on the actual calls, and that it's a critical tool in the fight against terrorism.
"Everyone should just calm down and understand this isn't anything that is brand new,'" said Senate majority leader Harry Reid.
James Clapper, the Director of National Intelligence, released a statement arguing that this program is "a sensitive intelligence collection operation, on which members of Congress have been fully and repeatedly briefed. The classified program has been authorized by all three branches of the Government."
What is the NSA Internet companies wiretapping program?
We have fewer details about this program, which is still shrouded in secrecy. The program, called PRISM, allows the federal government to secretly collect information on foreigner users of popular Internet services provided by Google, Yahoo, Facebook, Apple and at least five more companies, according to both The Guardian and the Washington Post, who obtained sections of a classified 41-page PowerPoint presentation of the program.
Under this program, the NSA allegedly has real-time access to e-mail, chat services, videos, photos, stored data, and file transfers from the collaborating services. In other words, the NSA has permission to eavesdrop and conduct blanket surveillance on foreigners' online communications.
Pretty much all the companies named in the secret presentation have either denied their participation in the program, or even denied knowing that the program existed at all. But President Obama, Clapper and legislators have effectively confirmed its existence.
We don't know yet about the technicalities of the program. In other words, we don't know if the NSA has compelled these companies to install a backdoor in their servers (something that the companies denied), or if they access an API (a theory also denied by some companies). What the companies said, basically, is that they don't allow any unfettered open-ended access, but that they just respond to lawful requests. What that precisely entails, in this case, is anyone's guess.
Why is this a big deal?
"They quite literally can watch your ideas form as you type," an intelligence officer, who leaked the secret documents to the Washington Post, told the paper.
If that's true and the reports turn out to be accurate, this program is just like having somebody look over your shoulder while you're on your computer, all the time.
What's the legal basis for this program?
As we explained here, PRISM stems from Title VII, Section 702 of the Foreign Intelligence Surveillance Act, or FISA. It was created by the FISA Amendments Act of 2008.
Section 702 allows the NSA to acquire information on foreign targets. The provision is pretty clear on this point: it's "foreign-intelligence information concerning non-U.S. persons located outside the United States." If the program intercepts information pertaining to American citizens, that interception can only be "incidental."
Even with such precise language, it's easy to see how the program could be abused. American data can easily get trapped in this surveillance dragnet if U.S. citizens communicate with somebody outside of the country.
What do officials say about this program?
Pretty much the same thing they said about the other one: it's about fighting terrorism, it's about making Americans safe, and it's perfectly legal.
"Information collected under this program is among the most important and valuable intelligence information we collect, and is used to protect our nation from a wide variety of threats," said Clapper, in a seperate statement addressing the PRISM program and Section 702.
Obama told a press conference that PRISM "does not apply to U.S. citizens and it does not apply to people living in the United States. And again, in this instance, not only is Congress fully apprised of it, but what is also true is that the FISA Court has to authorize it."
In other words, it's all legal, and it has all been approved by the powers that be.
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