NSA's Vast Surveillance Powers Extend Far Beyond Counterterrorism, Despite Misleading Government Claims

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Deeplinks blog / EFF

NSA's Vast Surveillance Powers Extend Far Beyond Counterterrorism, Despite Misleading Government Claims

Time and again we’ve seen the National Security Agency (NSA) defend its vast surveillance apparatus by invoking the spectre of terrorism, discussing its spying powers as a method to keep America safe.  Yet, the truth is that counterterrorism is only a fraction of their far broader authority to seek “foreign intelligence information,” a menacing sounding term that actually encapsulates all sorts of innocuous, everyday conversation.

The New York Times demonstrated this disconnect last week, reporting, “the [leaked NSA] documents make clear, the focus on counterterrorism is a misleadingly narrow sales pitch for an agency with an almost unlimited agenda. Its scale and aggressiveness are breathtaking.”

Under the Foreign Intelligence Surveillance Act, NSA is given a mandate for collecting "foreign intelligence information" but this is not a very substantive limitation, and certainly does not restrict the NSA to counterterrorism—rather, it is defined to include "information with respect to a foreign power ... that relates to ... the conduct of the foreign affairs of the United States."

Read that carefully for a minute. Anything “that relates to the foreign affairs of the United States.” Interpreted broadly, this can be political news, anything about economics, it doesn’t even have to involve a crime— basically anything besides the weather. Indeed, given the government penchant for warped and distorting the definitions of words in secret, we wouldn’t be surprised if the government would argue that weather could fall under the umbrella of “foreign intelligence information” too.

After all, government lawyers have managed to convince the secret FISA court that “relevant to” an investigation it no limitation at all – rather, it can encompass records of every call made in, to or from the United States. It seems unlikely that the government would interpret “relates to … the conduct of foreign affairs” to be any narrower.

This tactic is nothing new. Back in 2008, FISA Amendments Act supporters were invoking terrorism without mentioning this far broader definition, which has since been used to gather information from Internet companies as part of the infamous PRISM program.

Lead sponsor of the bill Sen. Kit Bond infamously said, "There is nothing to fear in the [new FISA] bill, unless you have Al Qaeda on your speed dial." Yet at the time, as Marty Lederman, a legal scholar who would later become a key lawyer in Obama’s Justice Department, explained that in reality, "There is nothing to fear in the new FISA bill unless you make international phone calls or e-mails that arguably implicate the federal government's national security, foreign affairs or law enforcement interests."

Yet, government officials consistently refer to terrorism as the reason NSA is conducting this surveillance, while occasionally adding the spice of nuclear proliferation or “cyber”-hackers. For example, Rep. Mike Rogers defended the NSA like this two weeks ago, telling CNN’s State of the Union that if French citizens knew what terror plots the NSA was protecting them from “they would be applauding and popping Champagne corks.” While Rogers knows full well that there is no terrorism connection to tapping German Chancellor Angela Merkel’s cell phone, he wants to conversation to go to more familiar ground.

Other times, NSA mentions “foreign intelligence information” and says examples of such information include terrorist activities, conveniently omitting the vast authority granted to spy for diplomatic information. After a story in Le Monde last month, the Director of National Intelligence referred reporters to the statement, “The government cannot target anyone under the court-approved procedures for Section 702 collection unless there is an appropriate, and document foreign intelligence purpose for the acquisition (such as for the prevention of terrorism, hostile cyber activities, or nuclear proliferation)…” (emphasis ours)

It’s in the NSA’s interest to sell their programs playing off the fears of Americans, and they do with great regularly. In fact, NSA talking points, obtained by reporter Jason Leopold using the Freedom of Information Act, state that NSA should continually invoke 9/11 under the heading “sound bites that resonate.”

Counter-terrorism and WMDs are certainly an important part of the NSAs mandate, but are not limits on its authority.  As we have seen from the reports about spying on foreign heads of state, foreign businesses, and even the World Bank, the NSA is using its spying superpowers to the full limits of “foreign intelligence information,” while trying to keep the conversation in a narrow band. 

So let’s get one thing straight: when the NSA vacuums up millions of innocent people’s communications and metadata, the agency is not limiting itself to counter-terrorism uses. Pretending there is a narrower scope is not an honest way to have a debate.

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Trevor Timm

Trevor Timm is a co-founder and the executive director of the Freedom of the Press Foundation. He is a writer, activist, and legal analyst who specializes in free speech and government transparency issues. He writes a weekly column for The Guardian and has also contributed to The Atlantic, Al Jazeera, Foreign Policy, Harvard Law and Policy Review, PBS MediaShift, and Politico. Follow him on Twitter: @TrevorTimm

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