By Jedidiah Bracy, CIPP/US, CIPP/E
Over the course of the last few weeks, two leaked U.S. National Security Agency (NSA) surveillance programs have put privacy issues in the headlines across the globe. Debate about privacy versus security has raged, and trade talks between the U.S. and EU have been potentially affected. Between government and industry reaction and a smattering of opinion, there’s been a lot to follow. Here, we try to piece it all together.
The NSA Surveillance Programs
On Wednesday, June 5, The Guardian reported that leaked documents contained proof that the NSA has been collecting the phone records of millions of Verizon customers on a daily basis. The U.S. Foreign Intelligence Surveillance Court allowed the blanket order that collected metadata—including the phone numbers of each calling party, location data, call duration and unique identifiers. The content of conversations was not included.
The next day, The Washington Post reported on another leaked NSA program called PRISM. According to documents and PowerPoint slides, the NSA and the Federal Bureau of Investigation “are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio and video chats, photographs, e-mails, documents and connection logs” that allow intelligence analysts to track foreign threats.
Nine companies, including Google, Facebook, Apple, Yahoo, YouTube, PalTalk, Microsoft, AOL and Skype, were specifically named in the documents. Several of these companies said that intelligence agencies did not directly tap into their servers.
The Washington Post has also released an updated guide to what the public currently knows about the leaked NSA programs.
On Sunday, June 9, former government analyst Edward Snowden revealed his role in leaking the top-secret documents.
U.S. Government Responds
U.S. government leaders, including National Intelligence Director James Clapper and President Barack Obama, have defended the programs, arguing they are legal.
Eight U.S. senators have called for an end to the “secret law” governing how U.S. intelligence agencies electronically gather information on U.S. citizens. The bipartisan group of senators—including Sens. Ron Wyden (D-OR), Patrick Leahy (D-VT), Mike Lee (R-UT) and Al Franken (D-MN)—introduced a bill to declassify FISA court opinions. Wyden said, “It is impossible for the American people to have an informed public debate about laws that are interpreted, enforced and adjudicated in complete secrecy.” Sens. Mark Udall (D-CO) and Wyden have also written to the director of the NSA to correct allegedly "inaccurate" information on the NSA homepage. The senators have been unable to publicly identify which parts are inaccurate because it could possibly compromise classified information.
The U.S. Privacy and Civil Liberties Oversight Board (PCLOB) has announced that investigating the programs is a “top priority.”
With attempts of passing baseline privacy legislation in the U.S. stalled over the past few years, Kate Kaye of AdAge asks, “Could the PRISM data surveillance scandal become the watershed moment that propels it forward?”
Linda Goldstein, a Manatt, Phelps and Phillips partner, said, “The privacy legislation has been a bit on the back burner, and I think this may help focus more attention on it and perhaps put it on the front burner,” adding, “This could have a significant impact on consumer attitudes, which ultimately could impact consumers’ willingness to share information with brands.”
The disclosure of the programs has also affected talks between the EU and U.S. on a data protection agreement. German Green MEP Jan Philip Albrecht said, “Common rules will only be possible if the principles of data protection will be accepted in the U.S. The foreseen but struggling EU-U.S. umbrella agreement would be a good chance to show that this is the case.”
European Parliament also delayed a vote on an airline passenger name register.
Albrecht said, “The concerns with the proposed system have not in any way diminished. If anything, with the latest revelations about U.S. infringement of the privacy rights of European citizens, we should be even more cautious about establishing more data grabbing and profiling systems.”
For its lead story on June 13, Financial Times (FT) reported on Obama administration lobbying efforts in Brussels to remove measures in the EU’s proposed data protection regulation “that would have limited the ability of U.S. intelligence agencies to spy on EU citizens.” Three “senior EU officials” told FT that the unofficially named “anti-FISA clause” would have prevented U.S. requests for technology and telecommunications companies to turn over data on EU citizens.
According to American Public Media, the NSA surveillance debate could threaten the EU-U.S. free trade negotiations.
U.S. Tech Businesses Speak Up
Several major U.S. technology firms cited in the NSA leaks spoke out, asking the U.S. government to allow them to provide their users with more information about national security requests.
On June 14, technology companies were given permission to disclose some data on national security requests publicly but could only do so if the numbers were combined with all law enforcement data requests—including those from state and local governments.
Prior to the government’s permission, Google posted an open letter to U.S. Attorney General Eric Holder and FBI Director Robert Mueller. Google Chief Legal Officer David Drummond wrote that the company’s compliance with government requests and “assertions in the press that our compliance with these requests gives the U.S. government unfettered access to our users’ data are simply untrue.” Drummond continued, “We therefore ask you to help make it possible for Google to publish in our Transparency Report aggregate numbers of national security requests, including FISA disclosures—in terms of both the number we receive and their scope.”
A coalition of more than 100 privacy groups and Internet firms have joined forces to call on Congress to end the blanket-style data surveillance programs, TIME reports. StopWatching.Us includes Mozilla, the Electronic Frontier Foundation, reddit and the American Civil Liberties Union as well as conservative groups Freedom Works and the Progressive Change Campaign Committee. In an open letter to Congress, the group writes, “This dragnet surveillance violates the First and Fourth Amendments of the U.S. Constitution, which protect citizens’ right to speak and associate anonymously and guard against unreasonable searches and seizures that protect their right to privacy.” The group advocates for reforming Section 215 of the USA PATRIOT Act, creating a special investigative committee and holding “accountable those public officials who are found to be responsible” for the surveillance.
Just days after the revelations, a lawsuit was filed against the government for its dragnet phone surveillance program. Wired reports the suit is the “first in what likely will be many lawsuits challenging the constitutionality” of the program.
On the heels of the incident’s first lawsuit the ACLU also filed a lawsuit challenging the NSA’s USA PATRIOT Act phone surveillance program. Some privacy advocates have said that collecting the metadata from phone carriers reveals more sensitive information than the PRISM program’s online surveillance.
However, the Associated Press reports on the past failures of lawsuits challenging widespread government surveillance programs. In 2006, telecommunications technician Mark Klein alleged that AT&T was permitting U.S. spies to gather large consumer datasets without a warrant. In response, dozens of consumer lawsuits were launched against both the government and phone carriers themselves, to no avail. The various lawsuits were bundled into one suit and went before a federal judge in California. Most were dismissed after Congress handed out retroactive immunity to the telecommunications providers from legal action—a move backed by the U.S. Supreme Court. The sole remaining suit continues to work its way through the courts system.
And the Ninth Circuit Court of Appeals has already dismissed a lawsuit brought against Obama, the head of the NSA and other leaders of major U.S. intelligence agencies in CCR v. Obama.
Consumer Awareness and Public Perception
The Washington Post reports on how the increased public awareness of the NSA tracking programs also draws attention to consumer data tracking. On Twitter, journalist Dan Sinker wrote, “When I go to The Washington Post to learn about gov data tracking, I’m hit by *fifty* commercial data trackers.” However, the report points out there are differences between government data tracking and consumer data tracking: The private industry is subject to market pressures, while the government is not.
An Allstate/National JournalHeartland Monitor poll reveals that “most Americans exhibit a healthy amount of skepticism and resignation about data collection and surveillance and show varying degrees of trust in institutions to responsibly use their personal information.” The poll was conducted days before the NSA disclosures.
Sir Martin Sorrell, founder of the world’s largest marketing services firm, said the revelations about the NSA programs are a “game changer” and will act as a catalyst for altering people’s views of privacy, according to The Guardian. “I think even amongst under-35s, people will become very concerned about privacy,” he said. “It is going to get aired I think quite extensively publicly. I think it is a matter of great public interest.”
As always, with a game-changing world event, opinions across the political spectrum are prevalent.
In a column for The Hill, Center for Democracy & Technology President Leslie Harris and Americans for Tax Reform President Grover Norquist teamed up to write about protecting citizens’ privacy in the Digital Age.
In The Guardian, Chinese artist Ai Weiwei—currently under house arrest in his country—wrote that, with such surveillance programs, the U.S. is behaving like China.
“This is an important moment for international society to reconsider and protect individual rights,” he wrote.
In an article for Slate, Farhad Manjoo opines about the role of whistleblower Edward Snowden and the NSA. “The NSA trusted its most sensitive documents to this guy?” Manjoo asks. “And now, after it has just proven itself so inept at handing its own information, the agency still wants us to believe that it can securely hold on to all of our data?”
Jim Harper of the Cato Institute suggests the NSA "redefined privacy for its own purposes." And in a column for Esquire, Charles Pierce rhetorically asks the American government, "can you tell me what's being done in my name?"
And World Wide Web inventor Timothy Berners-Lee has said he is “deeply concerned” about online privacy in light of the NSA programs.
For more details, here are links to each of the recent NSA roundups.
NSA Leak Implications Continue—June 20