The Intelligence Community operate surveillance programs without traditional privacy protections.
Federal intelligence agencies (often referred to as the “Intelligence Community” or “IC”) including the FBI, CIA, and NSA use advanced surveillance technologies to monitor people around the world. The National Security Agency (NSA) collected information on the calls of hundreds of millions of Americans and continues to monitor text messages, internet browsing, and emails. Intelligence agencies largely engage in forms of electronic eavesdropping, reading messages, listening to phone calls, and gathering information on contacts between people. However, they will also engage in hacking operations and often buy large amounts of personal information from data brokers. These agencies are tasked with performing specific and targeted intelligence operations, but they often instead engage in mass surveillance.
Surveillance Authority is Broad for the Intelligence Community
The Intelligence Community has been given broad authority to conduct surveillance both by Congress through the Foreign Intelligence Surveillance Act and the Executive Branch through Executive Order 12333. Under these authorities, the Intelligence Community has engaged in mass surveillance and captured without a warrant the communications of an untold number of Americans while being subject to very little oversight.
Foreign Intelligence Surveillance Act of 1978
Many of the government’s covert surveillance programs are authorized under the Foreign Intelligence Surveillance Act of 1978 (FISA). The act allows agencies to obtain wiretaps on phones, collect phone call information, perform physical searches of individuals, and require companies to disclose information. Intelligence agencies apply to a secretive court, the Foreign Intelligence Surveillance Court (FISC) for special warrants that generally require less evidence of wrongdoing than a traditional warrant.
Although FISA investigations are supposed to be targeted at non-citizens, the act allows intelligence agencies to collect information from citizens related to a FISA investigation, like a phone call between a foreign suspect and a US person. More egregious is the NSA’s “incidental” collection of information on ordinary Americans that in turn can be used by the Intelligence Community. The FISA Court routinely approves warrant applications that lack basic documentation or contain consequential errors. As a result, the FISA process provides substantially less privacy and civil liberties protection than the government claims.
Executive Order 12333
Executive Order 12333 opened the door for the NSA to engage in broad and unwarranted surveillance of both Americans and foreign citizens. It was signed by President Ronald Reagan on December 4, 1981. When the NSA lacks authorization to collect information under FISA, the agency may fall back on EO 12,333 as an alternative. In some years the order is the only authorization for the majority of the NSA’s spying activities. For example, under Executive Order authority, the NSA’s MYSTIC and RETRO programs allowed for the collection of 100% of a foreign country’s telephone calls and the subsequent retrieval of those calls at a later date. The NSA’s mass surveillance conducted under 12333 captures huge amounts of data unrelated to the mission of national security, including information on millions of Americans.
EO 12333 established broad new surveillance authorities for the intelligence community, outside the scope of public law. EO 12333 was amended three times by the Bush administration to adapt to changes in the structure of US intelligence after 9/11. It was amended by EO 13284 on January 23, 2003, EO 13555 on August 27, 2004 and EO 13470 on August 4, 2008. Similar to FISA, the order authorizes collection of metadata from American citizens as well as “incidental” collection of Americans’ communications. Although a warrant is required to directly monitor American citizens, this rule provides little protection. The breadth of NSA programs and global nature of communications ensures that the NSA can find and share a lot of messages from American citizens.
Intelligence Agencies Engage in Mass Surveillance
The Intelligence Community has a long history of using their powers to vacuum up information in bulk and sort out the relevant parts later. When agencies monitor a large swath of the population instead of specific targets, that’s called mass surveillance. Mass surveillance is dangerous because:
- It is much easier to abuse large datasets to spy on the wrong people;
- It is harder for people to know that they’re being targeted when everyone is being monitored; and
- There is no practical way to avoid mass surveillance, so you don’t get to decide how much privacy you want.
The NSA has run several mass surveillance operations including a bulk phone surveillance program that collected phone call data on millions of Americans. At the same time the NSA was performing wiretaps without getting FISA warrants. Under Section 215 of the Patriot Act the NSA obtained all of Verizon Wireless’s call records for a 3-month period, collecting the data of 120 million Americans. The NSA regularly buys access to emails, phone calls, and cellular data that can be used to track locations through its Upstream collection program. The agency is known to intercept email communications and monitor web traffic using access granted by Google, Yahoo, and major internet service providers.
Intelligence Surveillance is Often Biased
In the years after the September 11th attacks intelligence agencies targeted Muslims for invasive surveillance and monitoring. Agencies like the FBI and NSA targeted thousands of innocent citizens based solely on their religion. The FBI changed its internal investigative guidelines in 2002, and again in 2008, to allow agents to investigate Americans without any factual basis for suspicion. The agency monitored mosques across the country, leaving a generation of Muslim Americans with fear of government repression and substantial trauma.
EPIC opposes expanding intelligence surveillance by urging Congress to set limits on the surveillance powers of federal agencies and roll back intrusive surveillance laws like the Patriot Act. EPIC has testified before oversight boards to urge the review of the surveillance conducted by the intelligence community. EPIC also uses the Freedom of Information Act to learn more about how surveillance activities of the intelligence community impact ordinary citizens.
Recent Documents on Intelligence Surveillance
EPIC v. NSD (Section 702 Query Report)
US District Court for the District of Columbia
Seeking the public release of a report of the U.S. Government detailing the FBI's search through Americans' data collected using a foreign intelligence surveillance statute.
The Evolution and Jurisprudence of the FISC and Foreign Intelligence Surveillance Court of Review
Laura Donohue | 2021
“Incidental” Foreign Intelligence Surveillance and the Fourth Amendment
Stephen Vladek and Jennifer Daskal | 2017
PRISM's Legal Basis: How We Got Here, and What We Can Do to Get Back
Margot Kaminski | 2013
High Technology, Consumer Privacy, and U.S. National Security
Laura Donohue | 2015
With Liberty to Monitor All: How Large-Scale US Surveillance is Harming Journalism, Law, and American Democracy
ACLU and Human Rights Watch | 2014
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