![]() Acquisition is a seizure and has to be compliant with the Fourth Amendment.” Kurt Opsahl, general counsel of the Electronic Frontier Foundation, explains: “We have a fundamental disagreement with the government about whether acquisition is a problem. persons.īut it doesn’t prevent, or even claim to prevent, unreasonable seizures. The ostensible justification is that, while tens of millions of Americans may be swept up in this dragnet, the real targets are foreigners. In a legal document called USSID 18, the NSA sets out policies and procedures that purportedly prevent unreasonable searches of data from U.S. The government is indiscriminately seizing Internet traffic to see what’s in it, without probable cause. It can’t say, “We want to seize everyone’s Internet traffic to see what’s in it.” Instead, it must say something like, “We want to seize a specific incriminating document from a specific suspect.” The warrant can only be issued if they have probable cause, and the warrant must be specific. ![]() If government agents want to search you or seize your data, they must have a warrant. It means that Americans have a right to privacy. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. But the biggest and most obvious concerns are with the Fourth Amendment. XKEYSCORE, as well as NSA’s programs that tap the Internet directly and feed data into it, have some legal problems: They violate First Amendment rights to freedom of association they violate the Wiretap Act. In fact, the phone network itself is starting to go over the Internet, without customers even noticing. People also use the Internet in all the ways they use phones - often inadvertently sharing even more intimate details through online searches. Bulk collection of phone metadata is, without a doubt, a violation of your privacy, but bulk surveillance of Internet traffic is orders of magnitude more invasive. There isn’t an American alive today who didn’t grow up with at least some access to a telephone, so Americans understand this well.īut Americans don’t understand the Internet yet. ![]() Most of us, at one point or another, have spent long hours on the phone discussing the most intimate details about our lives. We use the phone to schedule job interviews without letting our current employer know, and to manage long-distance relationships. Americans call suicide prevention hotlines, HIV testing services, phone sex services, advocacy groups for gun rights and for abortion rights, and the people they’re having affairs with. The outrage over bulk collection of our phone metadata makes sense: Metadata is private. Maybe Verizon stopped giving phone metadata to the NSA, but if a Verizon engineer uploads a spreadsheet full of this metadata without proper encryption, the NSA may well get it anyway by spying directly on the cables that the spreadsheet travels over. And unlike the Patriot Act’s phone metadata program, Congress has failed to limit the scope of programs like XKEYSCORE, which is presumably still operating at full speed. Yet XKEYSCORE, the secret program that converts all the data it can see into searchable events like web pages loaded, files downloaded, forms submitted, emails and attachments sent, porn videos watched, TV shows streamed, and advertisements loaded, demonstrates how Internet traffic can be even more sensitive than phone calls. The courts ruled it illegal, and Congress let the section of the Patriot Act that justified it expire (though the program lives on in a different form as part of the USA Freedom Act). The NSA’s domestic surveillance of phone metadata was the first program to be disclosed based on documents from whistleblower Edward Snowden, and Americans have been furious about it ever since. When you pick up the phone, who you’re calling is none of the government’s business.
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