In January, President Trump victoriously signed the FISA Amendments Reauthorization Act of 2017, marking a six-year reboot of one of the most contested surveillance programs in the United States. The President signed the measure, despite his recent remarks disparaging the alleged surveillance of his campaign. Nonetheless, he released an official statement unambiguously supporting the Act, saying, “In order to detect and prevent attacks before they happen, we must be able to intercept the communications of foreign targets who are reasonably believed to possess foreign intelligence information.”
The President continued, praising one of the keystone provisions of the FISA Act: “Section 702 provides robust privacy protections for American citizens, and most importantly prohibits the Government from using it to target Americans and persons located in the United States.” The President’s remarks touch on a hot button issue at the center of the debates surrounding the measure. Though Trump is technically right that Section 702 prevents Americans from being specifically targeted, many have argued that American bystanders involved in foreign communications get surveilled anyway. It should be noted that the provision, when it was first introduced in 2008, effectively legalized the illegal wiretapping program instituted by the second Bush Administration.
The revamped law – which passed in the House, 256-164, and in the Senate, 65-34 – introduces some minor changes to the preceding FISA Act, which was originally authored in 1978 and amended in 2008 to include the “modern” surveillance provisions we know today. Of particular note is a provision that allows officials to collect emails that merely mention a target, even if said email was not sent to the targeted individual.
PRISM and Upstream
The law has been used to justify sweeping surveillance programs such as PRISM and Upstream. The former focuses specifically on tech companies, sweeping up data from corporations like Google, Microsoft and Apple. The latter intercepts data on its way in and out of the US, targeting major junctures.
Programs in Action
Thanks to the leaks provided by Edward Snowden, we know that these programs have led to the targeting of innocent activists the world over. Take Tony Fullman for instance. He is a pro-democracy advocate and New Zealand citizen who was placed on a potential terrorist list, whose home was ransacked by New Zealand spies working with NSA agents and whose passport was taken – all because he was targeted via the PRISM program.
Fullman admitted that he and his pro-democracy comrades would often lament the conditions in Fiji and the ruthlessness of its leaders, saying things like “‘Let me go back to Fiji and I’ll just get a knife and stab him!’” But, he maintained, “It’s venting. It’s our way of maintaining sanity — we just sit and bitch about everything. We don’t want violence. We want something where there’s control, a planned approach. More to the effect where it’s the people who protest and say, ‘Enough is enough. This is wrong. We want to go back to the old constitution and have elections.’” Situations like this must lead privacy advocates to wonder: do measures like Section 702 amount to the actualization of Orwell’s infamous thought police?
Fullman’s situation was perhaps extreme, but all of us are open to surveillance by government officials (or employers). Emails, for instance, are some of the most unsecure forms of communication out there, as they exist, not only on our own computers, but on the computers of the email’s recipients and the ISP’s server. You can’t simply delete an email and be done with it. In fact, ISPs often include what is known as an End User Service Agreement in user contracts. These weaken internet users’ right to privacy. Moreover, emails can be accessed without a warrant after 180 days.
An Age-Old Problem
The right to privacy is a much-contested concept that many claim is protected by the Fourth Amendment of the US Constitution and that is (at least somewhat) enshrined in laws such as the Electronic Communications Privacy Act, which has been limited by the Patriot Act in the wake of September 11th. Privacy has been on the agenda at least since Samuel D. Warren and Louis D. Brandeis wrote a paper in 1890 entitled “The Right to Privacy,” in which the authors famously stated that “the right to life has come to mean the right to be let alone.” In today’s political climate, it would appear that advocates have their work cut out for them when it comes to fighting for the right to be let alone.