The NSA's New "Expansion" Project and Data Mining Warehouse

I don't like focusing too much on any single issue here, as there are so many important privacy related stories to discuss. Nonetheless, revelations about the NSA's ongoing warrantless wiretapping program just keep popping up, and I believe it to be an issue that is fundamental to the future of our democracy - and the role "privacy" will play in it.

I mean, if we can't agree that our government does not have the right to listen in on our communications, what can we agree on? And, what do we stand for?

To understand how bad things REMAIN when it comes to this program, one must go back to the original FISA "reform" bill that Democrats caved in on back in July of 2008. Hailed in some quarters as a compromise, the new surveillance law was really nothing of the kind.

The bill was, in short, worse than granting absolute immunity to the telecoms: it was an effort to weaken the legitimacy of the federal courts by having a judge rubber-stamp the dismissal of cases against the telecoms without looking at the substance of what, in fact, was done.

Also under that original bill (which I will get to the part about how these concerns have now been proven correct), the government is now allowed to create new surveillance programs, each lasting a year, that focus on "persons reasonably believed to be located outside the United States." Provided that spying agencies do not "intentionally target" someone "known" to be in the United States, or intend to target "a particular, known person reasonably believed to be in the United States" (and with some other minor caveats), large-scale acquisition of data is permitted.

This was (and is) a radical break from the FISA regime created in 1978, and risks severe harm to Americans' privacy interests. The most important break with FISA is the absence of any individualized warrant requirement: it is now whole collection programs that are authorized and reviewed. And the abandonment of discrete, individualized legislative authorization and judicial review was only the first of the bill's troubling features.

The new provisions also allowed the government to create sweeping new programs that are formally targeted at overseas persons, but that predictably sweep in large numbers of people. The provision's loose language about targets - who do not in fact have to be overseas, only reasonably believed to be overseas - has given the government substantial latitude in crafting the parameters of its searches.

So that's a general summation of the problems I had with the original legislation (that is now law) last year. Glenn Greenwald of Salon.com also chimed in at the time:

The ACLU specifically identifies the ways in which this bill destroys meaningful limits on the President's power to spy on our international calls and emails. Sen. Russ Feingold condemned the bill on the ground that it "fails to protect the privacy of law-abiding Americans at home" because "the government can still sweep up and keep the international communications of innocent Americans in the U.S. with no connection to suspected terrorists, with very few safeguards to protect against abuse of this power."

Rep. Rush Holt -- who was actually denied time to speak by bill-supporter Silvestre Reyes only to be given time by bill-opponent John Conyers -- condemned the bill because it vests the power to decide who are the "bad guys" in the very people who do the spying. Abolishing eavesdropping safeguards was the central purpose of the FISA bill. It was why Dick Cheney and Michael McConnell were demanding its passage. Yale Law Professor Jack Balkin at the time wrote:

Most Americans don't realize that the FISA compromise comes in two parts. The first part greatly alters FISA by expanding the executive's ability to wiretap and engage in much broader searches of communications than were permissible under the law before. It essentially gives congressional blessing to some but not all of what the executive was doing under President Bush. President Obama will like having Congress authorize these new powers. He'll like it just fine. People aren't paying as much attention to this part of the bill. But they should, because it will define the law of surveillance going forward. It is where your civil liberties will be defined for the next decade.

Now to the evidence regarding what in fact is happening today, and how this new law is being utilized by the Obama Administration. On Monday I posted the San Francisco Chronicle's editorial describing its concerns, and today, I can't help but post James Bamford's article in Salon.com today, entitled "The NSA is Still Listening to You".

Bamford has authored three books on the NSA alone, including his latest, "The Shadow Factory: The Ultra-Secret NSA From 9/11 to the Eavesdropping on America."

Bamford writes:

This summer, on a remote stretch of desert in central Utah, the National Security Agency will begin work on a massive, 1 million-square-foot data warehouse. Costing more than $1.5 billion, the highly secret facility is designed to house upward of trillions of intercepted phone calls, e-mail messages, Internet searches and other communications intercepted by the agency as part of its expansive eavesdropping operations. The NSA is also completing work on another data warehouse, this one in San Antonio, Texas, which will be nearly the size of the Alamodome.

The need for such extraordinary data storage capacity stems in part from the Bush administration's decision to open the NSA's surveillance floodgates following the 9/11 attacks. According to a recently released Inspectors General report, some of the NSA's operations -- such as spying on American citizens without warrants -- were so questionable, if not illegal, that they nearly caused the resignations of the most senior officials of both the FBI and the Justice Department.

Last July, many of those surveillance techniques were codified into law as part of the Foreign Intelligence Surveillance Amendments Act (FAA). In fact, according to the Inspectors General report, "this legislation gave the government even broader authority to intercept international communications" than the warrantless surveillance operations had. Yet despite this increased power, congressional oversight committees have recently discovered that the agency has been over-collecting on the domestic communications of Americans, thus even exceeding the excessive reach granted them by the FAA.

...

Also troublesome is the fact that the FAA emasculates the Foreign Intelligence Surveillance Court, the one independent check and balance between the agency and the American public. Originally established as a response to the discovery by Congress in the mid-1970s that the NSA had been illegally eavesdropping domestically for decades, the FISA court required the government to show that there was probable cause to believe that its surveillance target was an agent of a foreign government or terrorist group in order to obtain a necessary warrant. But the new law does away with this requirement, and now the NSA does not even have to identify the targets of its surveillance at all as long as it is targeting people outside the U.S., leaving the agency free, for example, to target human rights activists or media organizations overseas, even if they are communicating with family or editors back in the U.S. As former NSA "voice interceptor" Adrienne Kinne told me in my book, "The Shadow Factory: The Ultra-Secret NSA From 9/11 to the Eavesdropping on America," the agency targeted both groups during the Bush administration, including eavesdropping on intimate bedroom conversations.

...

Among the most striking discoveries to come out of the Inspectors General report was that, despite the enormous expansion of the NSA's capabilities, including turning its giant ear inward for the first time in three decades, no one could point to any significant counterterrorism success. Instead, it warned that while the agency had little difficulty collecting vast amounts of data, the trouble was analyzing it all. It was a problem akin to Jorge Luis Borges' "Library of Babel," a place where the collection of information is both infinite and at the same time monstrous, where the entire world's knowledge is stored, but not a single word understood. In this "labyrinth of letters," Borges wrote, "there are leagues of senseless cacophonies, verbal jumbles and incoherences." In addition to the civil liberties and constitutional defects in the new surveillance law, another compelling argument against it is that it only increases the amount of "senseless cacophonies" in America's Library of Babel.

Click here to read the article in its entirety.

Once again, I must give special thanks to the ACLU. Today they are appearing in federal court charging that the new FAA statute is unconstitutional. As Bamford also notes, "While the FAA prohibits the agency from intentionally "targeting" people within the U.S., it places virtually no restrictions on the targeting of people outside the U.S. even if those targets are communicating with U.S. citizens and residents. The law essentially allows the agency virtually unfettered access to the international communications of innocent Americans in clear violation of the Fourth Amendment."