The FISA Amendments Act of 2008 (FAA) — the statute the government uses to engage in warrantless surveillance of Americans’ international communications — is scheduled to expire in December 2017. In anticipation of the coming legislative debate over reauthorization, Congress has already begun to hold . While Congress must address many problems with the government’s use of this law to surveil and investigate Americans, the government’s use of “Upstream” surveillance to search Internet traffic deserves special attention. Indeed, Congress has never engaged in a meaningful public debate about Upstream surveillance — but it should.
First disclosed as part of the Snowden revelations, Upstream surveillance involves the NSA’s bulk interception and searching of Americans’ international Internet communications — including emails, chats, and web-browsing traffic — as their communications travel the spine of the Internet between sender and receiver. If you send emails to friends abroad, message family members overseas, or browse websites hosted outside of the United States, the NSA has almost certainly searched through the contents of your communications — and it has done so without a warrant.
The executive branch contends that Upstream surveillance was authorized by the FAA; however, as others have noted, neither the text of the statute nor the legislative history support that claim. Moreover, as former Assistant Attorney General for National Security David Kris recently explained, Upstream raises “” legal questions about the suspicionless searching of Americans’ Internet communications — questions that Congress must address before reauthorizing the FAA.
Because of how it operates, Upstream surveillance represents a , one in which computers constantly scan our communications for information of interest to the government. As the legislative debate gets underway, it’s critical to frame the technological and legal issues that Congress and the public must consider — and to examine far more closely the less-intrusive alternatives available to the government.
Upstream Surveillance: An Overview
As we’ve learned from and media , Upstream surveillance consists of the mass copying and content-searching of Americans’ international Internet communications while those communications are in transit. The surveillance takes place on the Internet “backbone” — the network of high-capacity cables, switches, and routers that carry Americans’ domestic and international Internet communications. With the compelled assistance of telecommunications providers like and , the NSA has installed surveillance equipment at dozens of points along the Internet backbone, allowing the agency to copy and then search vast quantities of Internet traffic as those communications flow past.
The NSA is searching Americans’ international communications for what it calls “selectors.” Selectors are, in essence, keywords. Under the FAA, they are typically email addresses, phone numbers, or other identifiers associated with the government’s targets. While this might sound like a narrow category, the reality is much different, as Jennifer Granick and Jadzia Butler recently . That’s because the NSA can target any foreigner located outside the United States who is believed to possess “foreign intelligence information” — including journalists, human rights researchers, and attorneys, not just suspected terrorists or foreign spies. At last , the NSA was targeting more than 94,000 people, organizations, and groups under the FAA.
In practice, that means the NSA is examining the contents of each communication for the presence of tens of thousands of different search terms that are of interest to the government. And that list continues to grow, as the NSA adds new targets and entirely new categories of selectors to Upstream surveillance. Whenever the NSA finds a communication that contains a “hit” for any one of its many selectors, it stores that communication for the agency’s long-term use and analysis — and it may share those communications with the FBI for use in criminal investigations.
“About” Surveillance
Observers, including the Privacy and Civil Liberties Oversight Board (PCLOB), have singled out one feature of this surveillance as especially controversial: what’s often called “about” surveillance. This term refers to the fact that the government is not only intercepting communications to and from its targets, but is systematically examining the communications of third parties in order to identify those that simply mention a targeted selector. (In other words, the NSA is searching for and collecting communications that are merely “about” its targets.)
“About” surveillance has little precedent. To use a non-digital comparison: It’s as if the NSA sent agents to the U.S. Postal Service’s major processing centers to engage in continuous searches of everyone’s international mail. The agents would open, copy, and read each letter, and would keep a copy of any letter that mentioned specific items of interest — despite the fact that the government had no reason to suspect the letter’s sender or recipient beforehand. In the same way, Upstream involves general searches of Americans’ international Internet communications.
Upstream Surveillance Is Bulk Searching
Although the government frequently contends otherwise, Upstream surveillance is a form of bulk surveillance. To put it plainly, the government is searching the contents of essentially everyone’s communications as they flow through the NSA’s surveillance devices, in order to determine which communications contain the information the NSA seeks. While the government has “targets,” its searches are not limited to those targets’ communications. Rather, in order to locate communications that are to, from, or “about” its targets, the government is first copying and searching Americans’ international communications in bulk.
There is no question that these searches are extraordinarily far-reaching. The on national-security surveillance, co-authored by former Assistant Attorney General David Kris, explains that the “NSA’s machines scan the contents of all of the communications passing through the collection point, and the presence of the selector or other signature that justifies the collection is not known until after the scanning is complete.” Likewise, the Foreign Intelligence Surveillance Court (FISC) has that the NSA is searching the full text of every communication flowing through the surveillance devices installed on certain international backbone links.
For technological reasons, Upstream surveillance — at least as it’s conducted today — necessarily ensnares vast quantities of communications. When an individual uses the Internet, whether to browse a webpage or send an email, his computer sends and receives information in the form of data “packets” that are transmitted separately across the Internet backbone. As Charlie Savage recently explained in , “when an e-mail is transmitted over the Internet, it is broken apart like a puzzle. Each piece of the puzzle travels independently to a shared destination, where they converge and are reassembled. For this reason, interception equipment on a switch in the middle cannot grab only a target’s e-mail. Instead, the wiretapper has to make a copy of everything.” While the NSA may exclude certain types of irrelevant traffic — like Netflix videos — it can identify the communications it’s seeking only by copying and searching the remaining Internet traffic in bulk.
In court, the Department of Justice has resisted acknowledging the breadth of these bulk searches —preferring to say, euphemistically, that the NSA is “screening” or “filtering” communications. But it’s playing . The only way for the NSA to determine whether a communication contains one of its selectors is to search the contents of that communication. At scale, that means the NSA is searching the contents of trillions of Internet communications, without anything resembling a warrant.
Upstream Surveillance Is Unprecedented and Unlawful
Because it involves bulk searches, Upstream surveillance is very different from other forms of surveillance, and it should be debated with that in mind. As the Privacy and Civil Liberties Oversight Board (PCLOB) :
Nothing comparable is permitted as a legal matter or possible as a practical matter with respect to analogous but more traditional forms of communication. From a legal standpoint, under the Fourth Amendment the government may not, without a warrant, open and read letters sent through the mail in order to acquire those that contain particular information. Likewise, the government cannot listen to telephone conversations, without probable cause about one of the callers or about the telephone, in order to keep recordings of those conversations that contain particular content.
In short, the Fourth Amendment does not allow the government to conduct a general, suspicionless search in order to locate specific information or evidence. Instead, as the ACLU has explained at length elsewhere, the government is required to have probable cause — and a warrant — before it searches the contents of our communications. Upstream surveillance reverses this logic, using the end results of the NSA’s searches to justify the continuous, bulk review of Americans’ Internet traffic. The ODNI General Counsel has for rewriting the Fourth Amendment to permit these types of searches — which only underscores how novel and extreme the government’s legal theory really is.
Americans — and Congress — need to be concerned about what it means to have government computers monitoring our communications in real-time. As the PCLOB emphasized, one of the fundamental problems posed by Upstream surveillance is that “it permits the government to acquire communications exclusively between people about whom the government had no prior suspicion, or even knowledge of their existence, based entirely on what is contained within the contents of their communications.” David Kris , asking whether the government should be permitted to “review the contents of an unlimited number of e-mails from unrelated parties in its effort to find information ‘about’ the target.”
The PCLOB, in its report, expressed serious concern about Upstream surveillance, finding that the nature and breadth of this surveillance pushed it “close to the line” in terms of lawfulness. At the same time, however, the PCLOB expressed the view that “about” surveillance was unavoidable for technological reasons. While this is the subject for a separate post, that factual claim is doubtful. The NSA could, if it chose, do far more to isolate the communications of its targets based on metadata — such as email addressing information — rather than searching the entire contents of everyone’s communications using selectors. Indeed, “Next Generation Firewall” technology is capable of distinguishing metadata from content across many different types of communications. Moreover, the NSA has already shown that it can implement this capability on the Internet backbone — because its bulk Internet metadata program, which it operated for ten years, required very similar capabilities. Even with these modifications, significant questions about the lawfulness of the surveillance would remain; but there is no question that it would be more protective of Americans’ privacy than today’s Upstream surveillance.
Between now and the sunset of the FAA in December 2017, it is crucial that Congress engage in an informed, public debate about whether it is constitutional — and whether it is prudent — to permit the executive branch to wield this incredibly invasive surveillance tool.
This post originally appeared at .
Learn More About the Issues on This Page
-
Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.