Security vs Privacy, the Current Tradeoff with the FISA Amendments Act

Security vs Privacy, the Current Tradeoff with the FISA Amendments Act

Privacy is a big topic in contemporary society, specifically with regards to how important it is when it comes to our safety. Everyone wants to feel protected by their government and the authoritative organisations that it employs, but when those same groups begin to infringe on an individuals fourth amendment rights to do so, things start to get a little difficult.

However that hasn’t stopped American officials in the past few years. Terrorism and the 9/11 attacks put the scare in politicians, the military and everyday citizens, allowing George W. Bush to implement not only the controversial Patriot Act, but a warrantless wiretapping program as well. The FISA Amendments Act (FAA) of 2008 brought that scheme within the scope of American law, allowing individuals to continue having their phone and electronic communications monitored, if it was considered that Al-Queda was in-directly being spied upon by the authorities. In short, as long as Al-Queda was the target, it didn’t matter who stood in the way.

That same bill was due to run out at the end of 2012, except it has now been extended for a further five years(PDF), after congress voted it in with a vote of 301 in favour, to 118 against. Goerie has a good breakdown of the voters here.

The FAA Extension bill in all its glory

With another half decade of this ahead of us, it’s important to consider the impact this could have on our daily lives and whether it’s something we can to do something about. As internet denizens, the power of protest has been made clear. SOPA, PIPA, ACTA have all fallen to the collective might of the internet. We may not need to do the same thing here, we may not feel strongly enough about it, but full disclosure of what this bill is about is certainly warranted.

Those aforementioned bills are apt comparisons with the FAA extension, because as those same bills were worded and designed to be used against foreign websites but were loosely worded enough to allow domestic use, so is FAA.

Some of the supporters of the amendment were quite keen to postulate that this bill had nothing to do with Americans. Representative Trey Gowdy shouted that “This bill doesn’t implicate the Bill of Rights, any more than it implicates any other part of our Constitution.” Theis completely neglects the fact that it already has been used against Americans, the NSA just won’t say how many. The only response so far was that it was impossible to know.

It’s always good when an intelligence agency doesn’t know something important that affects the rights of its country’s citizens and seems to have no problem admitting so.

Making the innocent claim seem even more ridiculous was intelligence committee chairman Mike Rogers, who said that the law might permit the surveillance of Americans, but that it would only happen very rarely. If that was the case however, wouldn’t the NSA be keen to suggest that even if some citizens were monitored, that the number was very low?

Extrapolating this point, we can assume that the number is in-fact, pretty high. Whether we’re talking thousands or millions, is impossible to know. However we can guess how the system works by looking at other organisations that have the potential to monitor huge numbers of people and how they deal with it.

Let’s look at Facebook. There we have a company — not too dissimilar in how a government agency operates — that has the data of almost a billion people. We know that it monitors chat conversations and status updates for suicide language and incriminating wording, but that can’t be manual, it has to be automated. It doesn’t take much of a stretch of the imagination to assume that the NSA would operate in a similar manner.

With that in mind, we could be looking at millions of Americans having their communications monitored electronically and if enough red flags pop up around a certain individual, in comes the human snooper.

Of course this isn’t necessarily a problem if we’re only talking terrorism. If Al Qaeda is the only real target for groups like the NSA and the FAA is only be used to eventually get information about the organisation, then you could somewhat argue that it’s understandable, even a good idea. The problem comes with the fact that power often corrupts and the loose wording of the FAA suggests that it would be incredibly easy to corrupt the original purpose of the bill.

Davis S. Kris who was head of the Justice Department’s National Security Division between 2009 and 2011, explained in the 2012 edition of National Security Investigations and Prosecutions, says that the FAA’s provision states: “under section 1881a [the government] is “not required to identify the specific facilities, places premises, or property at which an acquisition … will be directed or conducted.”

So anyone that can strenuously linked to Al Qaeda, could be wire-tapped and those responsible for it wouldn’t be subject to much of an approval process.

Then you have the fact that Al Qaeda is funded in large parts by the drugs trade, particularly heroin. That could very easily stretch the definition of the FAA to allow NSA and other organisations to wiretap anyone even slightly involved in the drugs trade, because it may have a link to Al Qaeda coffers and therefore terrorism.

That medical marijuana facility? It might be linked. Better monitor it anyway. Who’s going to check? With the FAA, those making use of its statutes don’t have to explain themselves. The fact that President Obama has already raided more medical dispensaries than George Bush did in his entire eight year term raises a few eyebrows in this context.

The only caveat to the whole thing is that congress, seeing some of the potential issues with this bill, have added a “minimsation procedure,” that prevents authorities from recording calls or emails if they know in advance that another US citizen is taking part in the conversation. Kris and his colleagues pointed out however, that this restriction, “is imperfect because location is difficult to determine in the modern world of communications, and the restriction applies only when the government ‘knows’ that the communication is domestic.”

Even if we accept all this. Even if we say that we’re ok with the government recording phone calls, reading emails and text messages, spying on large numbers of US citizens and their conversations — how is that information being stored? If any of the Anonymous or Lulzsec hacks in the past couple of years have told us anything, it’s that even the biggest of companies and authoritative organisations aren’t safe.

If I’m potentially being spied upon and my data recorded, I want to know that that information will only be held for a short period of time and stored very securely. I imagine many others would feel the same.

If you’re feeling at this point that you’d have liked this bill not to have passed, or at least heavily opposed, you aren’t the only one. The American Civil Liberties Union published a letter, signed by over 20 rights groups that said while it supports “both security and liberty,” it could not support the extension of the FAA. It urged representatives to vote “no” on the bill and that if it was to continue after all, that it would need to be modified. It argued that the government should be required to disclose how many Americans were being monitored and how many in total had been “affected.” Presumably that latter number would be much larger than the first.

It also wanted it made impossible for other organisations to make use of the collected data for reasons other than national security. Even that definition sounds like it could be stretched. It’s a much loved term from government agencies when defending actions condemned by anyone outside of the organisation.

Despite these requests however, they ultimately failed to prevent congress from voting “no.” The only people now that stand in the way of this being passed fully are the senate, who will vote before the end of the year. A full floor debate will be held before it can be fully approved.

If you don’t like the sound of this, I’d urge you contact your representatives and let them know how you feel. If the FAA is extended, it’ll be another five years before US citizens have any sort of chance to block its renewal. If you’re going to act, the time is now.