In May, Edward Snowden leaked documents from the NSA that shed light on the agency’s PRISM program and put online privacy in the headlines. Americans are concerned that the government is collecting their personal data directly from online companies like Microsoft, Apple, Facebook, Google and Yahoo. These companies and the government, however, assure the people that only those outside of America are being targeting by PRISM. While this is technically true, there are certain loopholes and permissive interpretations of the law that could potentially affect the privacy of everyday Americans.
Murky understanding of PRISM
The now infamous leaked slide (below) indicated that the NSA received data directly from the servers of U.S. service providers. Some people have interpreted this to mean that the NSA has direct access to Internet companies’ servers. But is that really the case?
The companies in question have all vehemently denied that the government has direct access to their servers. However, requests granted from the Foreign Intelligence Service Court often come with stop-gag orders, meaning that the existence of the requests cannot be publicly mentioned.
According to the government and FISC, any requests for access to digital information are scrutinized by service providers before they are granted. The Foreign Intelligence Service Act made it legal for the NSA to request this information. The requests must be specific and targeted; the government cannot request information on, for example, everyone who searched a specific keyword. The idea is that the government can only request information on specific individuals.
Dr. John Hatzadony, director of security policy studies at Notre Dame College, explains that “The NSA is tasked with intercepting communications. In the war with Al Qaeda the only real way to track such a dispersed network was through communications.” This reasoning created a way for the government to intercept communications between individuals suspected of being involved with terrorist activities to promote safety at home and abroad. FISA does not directly enable the government to collect data on Americans. However, there are instances that may make listening in on American citizens on American soil permissible.
How it could lead to spying on Americans
Defenders of NSA’s operations cite that FISA does not violate the Fourth Amendment because it only targets non-Americans. What happens if a non-American under surveillance is in communication with a residential American? That’s where the ins and outs of PRISM are unclear and potentially encroach on online privacy of American citizens.
The Washington Post reported that “the surveillance may not intentionally target an American, but the NSA can obtain the private communications of Americans as part of a request that officially targets a foreigner. The Supreme Court has yet to rule on the constitutionality of these provisions. In February, the Supreme Court threw out a legal challenge to the law because the plaintiffs couldn’t prove that they had personally been the target of surveillance. It’s not clear whether any of the recent revelations will give FISA opponents enough evidence to convince a court to rule on the program’s merits.”
However, even this targeting rule may not be enough to protect Americans. Last week, it came to light that an obscure provision in the Patriot Act allowed the government to obtain records of every phone call on Verizon’s network with a single court order—a practice that contradicts the requirements of specified and individual requests supposedly necessary to issue a FISA order.
Furthermore, guidelines don’t completely rule out the potential for abusing the system. The existence of the PRISM program itself is arguably a violation of privacy. As Dr. Hatzadony points out, “Unlike previous wars where presidents and Congress stretched constitutional interpretations (Lincoln’s suspension of Habeas Corpus in the Civil War and Japanese interments in World War II), those wars ended. There was a defined end and success that allowed a relaxation and return of civil rights. The so-called Global War on Terror has no definition of success and that’s the biggest concern. These programs may never end because we cannot define success.”
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