Edward Snowden

Surveillance and the Limits of Law

In June of 2013, Edward Snowden leaked primary documents that proved the existence of NSA surveillance networks of vast and still-only-partially-known extent. Following a “collect it all” philosophy, the NSA was collecting the phone metadata of entire countries at a time, including the US; tapping Internet traffic passing over international cables; undermining the encryption that makes the Internet work; and exploiting every piece of imperfect drafting in the laws governing their operation to violate the privacy of everyone on Earth, for the nominal purpose of preventing terrorist attacks.

Civil liberties activists like myself have tried to use the law—including amicus briefs and local surveillance oversight ordinances—to rein in the NSA, the FBI, and other intelligence agencies. The nonprofit I chair, Restore The Fourth, focuses on the Fourth Amendment, which limits the circumstances in which the government can search and seize your person and your stuff. It’s important that there is a constitutional provision governing these matters, but taking a strictly legal approach addresses only a small element of the threats to our privacy. It also presumes that our system of government will foster accountability in all the ways that really matter, which, in 2020, seems naïve.

Nowadays, we have to ask ourselves deeper questions like: How far do intelligence agencies respect the law? Are laws that can actually pass worth pursuing in the first place? What alternatives exist for activists that can bring us to a world where, instead of fighting an eternal rearguard action against the combination of imperial power and commercial profit, we can thrive as individuals and communities, without our every move and activity being ceaselessly tracked and exploited?

How Far Do Intelligence Agencies Respect The Law?
“The illegal we do immediately. The unconstitutional takes a little longer.” —Henry Kissinger

There is some public evidence that operatives for the most clandestine programs can have a Kissingerian disregard for the law. The testimony of NSA whistleblower Russell Tice alleges that there are “special access” or “black world” programs within the NSA that systematically monitor the communications of every entity and person likely to affect its budget and scope of operations. We could characterize this, following Orwell, as an “Inner Party” honesty about the real nature of the relationship between the surveillance power and the elected officials who are supposed to oversee it.

However, the intelligence agencies are not a monolith; these programs are, Tice alleges, kept secret from the rest of the NSA because they would not approve of them. Within the less secret programs to which more junior whistleblowers like Edward Snowden had access, there is genuine evidence of operatives at the NSA caring what the law is. This “Outer Party” attitude is captured well by the public statement of former NSA director General Michael Hayden:

“I had a duty to play aggressively—‘right up to’ the line [of the law]. Playing back from the line protected me but didn’t protect America. I made it clear I would always play in fair territory, but that there would be chalk dust on my cleats. Against a merciless enemy, we fight hard.”

The evidence for the reality of this attitude lies in the NSA’s public advocacy. If they were entirely indifferent to what key laws such as the PATRIOT Act or FISA said, they would leave Congressbabies to play with their statutory toys at will, and continue with surveillance activities regardless, right? But that’s not exactly what happens.

Instead, the NSA brings considerable pressure to bear on lawmakers to modify the law and make it more permissive. They co-opt small subsets of lawmakers, like the so-called “Gang of Eight” (the majority and minority leaders in the House and Senate, and the chair and ranking member of the House and Senate intelligence committees), and routinely assure them that their programs are fully lawful. What lawmakers often miss is that the NSA’s interpretation of words within the law may differ substantially from what they tell Congress in public contexts, and even further from the common public understanding of those words; legal scholar Sudha Setty terms this practice “constructive secrecy.”

The intelligence community also takes systematic steps to prevent adverse court rulings on the legal and constitutional merits of their practices. Though there are (probably) many people in the US today who have been improperly convicted as a result of warrantless NSA intelligence intercepts, the practice of “parallel construction”—where legitimate evidence is gathered after the fact in order to conceal illicit surveillance—prevents defendants from knowing the true source of the evidence against them and from challenging that evidence in court. The NSA has chosen to reveal only a very few cases where intelligence intercepts have been used to help convict somebody, notably the cases of Basaaly Moalin and Mohamed Osman Mohamud. In the Moalin case, intercepts from the “call detail records” program under section 215 of the PATRIOT Act, a program which intercepted metadata on all cellphones in the US, was used to convict Moalin of wiring $8,500 to an affiliate of the Somali extremist group al-Shabaab that was defending his hometown against an invasion from Ethiopia. In the Mohamud case, intercepts authorized under section 702 of the FISA Amendments Act were used to help convict Mohamud of a plot to attack Christmas celebrations in Oregon. Speculatively, in the latter case, prosecutors selected this particular case for disclosure because the defendant was not one who would easily garner the sympathy of a jury. If so, the strategy worked; Mohamud’s case led to the Ninth Circuit declaring that intercepting communications of a US person without a warrant was constitutional, so long as the person targeted was a foreign national.

So, how can US persons litigate the constitutionality of a program when they don’t know whether they have been surveilled? Currently, defendants must first submit proof they have been surveilled—proof which only the government possesses—before the government would have to defend the surveillance on its own merits. In order to challenge this premise and hold the government accountable for Fourth Amendment violations, The Electronic Frontier Foundation launched a suit on behalf of AT&T customers, Jewel v. NSA. That case—which has now, in its eleventh year, also reached the Ninth Circuit—is perhaps our best shot at getting the courts to recognize the Kafka-esque absurdity of this position. Then, a ruling may be possible that mass interception of our communications is not constitutional. However, there is a further barrier. It is always possible for the government to assert that the “state secrets doctrine” precludes it from having to discuss such programs even if plaintiffs plausibly allege that they are abusive; and even in our post-Wikileaks world, there are still courts willing to buy such arguments.

Edward Snowden

Edward Snowden by Andrea Kmetova, CC BY-SA-2.0

One day, we may see a clear ruling on the merits from the Supreme Court that mass surveillance programs are unconstitutional. The NSA’s campaign to prevent such a ruling has been successful so far, but also shows that were there to be such a ruling, it would likely not be wholly ignored. It is in that breathing space, that limited way in which the NSA and the intelligence community still considers itself subject to the law, that our republic still survives.

In truth, most lawmakers don’t yet mind much that the intelligence agencies only respect the law in the limited sense I describe. The overriding mentality in the wake of the September 11th attacks, which lawmakers have explained to me many times, has been that voters will punish you if they perceive that you have not done everything possible to prevent an attack, and that Constitutional concerns can and must take a back seat to an overriding need among voters to feel safe. This is less true among left-leaning voters than it once was, in part because it’s easier to care about the Constitution when someone you dislike is breaking it. Some lawmakers on both left and right—such as Kentucky Republican Mike Lee, Michigan independent Justin Amash, and Oregon Democrat Ron Wyden—indisputably care about the issue of mass surveillance, but the leadership of both parties in both Senate and House as well as most of the intelligence committees in both chambers generally oppose reform. Perhaps one-sixth of Republicans and two-fifths of Democrats may now be placed in the “reformers” camp, and many of them have co-sponsored the new Safeguarding Americans’ Private Records Act, which, if passed, would neuter the infamous section 215. With no action, that section will sunset on March 15th. And even though the NSA itself has said that it can’t run the program within the law, and that they’ve suspended it, President Trump (amid a rotating crew of temporary Directors of National Intelligence, Richard Grenell being the latest) is still advocating for these powers to be maintained. Maybe now, a generation after 9/11, Congress will finally put this “emergency” power to bed; but given Nancy Pelosi’s track record on the issue, don’t hold your breath.

Responses of Dissidents
The result of the efforts of the NSA and other intelligence agencies to avoid scrutiny, is that dissidents operate at a grave disadvantage. Even in communities strongly opposed to surveillance, institutional culture can radically constrain the effectiveness of laws. Both Berkeley, California and Cambridge, Massachusetts have passed surveillance oversight ordinances since Trump came to power, but in Berkeley, even with a local law that insists on it, the City Manager has still been resistant to public discussion and accountability.

In response to the limits of law, dissidents have been turning more to boycotts and protests of private companies like Amazon and Palantir whose products fuel the surveillance state, engaging in non-violent direct action. But the advance of surveillance technologies themselves are also making it much easier for both the government and private companies to track and disrupt the activities of people who take, or intend to take, action against them. And it’s pretty clear, in most places, what side law enforcement comes down on; they are happy to argue that protesters and direct action folks who conceal their faces or use end-to-end encrypted messaging in order to avoid surveillance are obviously up to no good. At Standing Rock, police worked with the Joint Terrorism Taskforce to surveil and injure peaceful “water protectors” whose crime was trying to stop a pipeline that is now polluting their lands, and very few politicians spoke up to defend them; the FBI has declared Black Lives Matter activists to be “violent extremists” and made it their top organizational priority to investigate them. In the absence of credible foreign threats, the future of warfare, in the eyes of ICE and the Department of Defense, is a war of governments against their own internal dissidents, and they are treating episodes like Standing Rock as drills for what will go down in the future.

These trends make me afraid, and are intended to; I fear that the technological and cultural doors are closing on being able to do the kind of peaceful actions that effect real change. As chair of Restore The Fourth, I help to organize peaceful local and national resistance to the surveillance state. We spend a lot of time considering what laws and regulations and rulings can help; but that legal work rests on an easily broken trust that the police and the intelligence agencies will obey the law if we succeed in changing it. Our local victories—surveillance ordinances have now passed in more than 20 cities and towns, and are steadily spreading—give me hope that we can win, but for this fight, we’ll need all the help we can get.

“Those who make peaceful revolution impossible, will make violent revolution inevitable.” John F. Kennedy, 1962.

The risk of violence is real if the intelligence agencies, and the politicians that needlessly enable them, cannot bear oversight or opposition when they violate people’s rights. Ordinary people already see that the government is not run for them or in their interests, and that the government is very willing to criminalize dissent; we must act now, before technological advances crowd us with so many sensors and devices that every deviation from police-approved norms of thought and behavior will be squashed before they have time to spread.