Privacy Advocates: With PRISM, FBI Has No 'Going Dark' Argument

Experts say the recently-uncovered PRISM program means the FBI and NSA have no problem accessing data.

(AP Photo)

A copy of the U.S. Foreign Intelligence Surveillance Court order requiring Verizon on an "ongoing, daily basis," to give the NSA information on all landline and mobile telephone calls.

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The National Security Administration is watching - but why is that a surprise?

Recent news that the National Security Administration has been secretly accessing millions of emails, phone records and other electronic communications comes as no surprise to those in the privacy community, who have been pushing for details of government monitoring under the Foreign Intelligence Surveillance Act since at least July 2006, when the Electronic Frontier Foundation sued AT&T for allegedly passing private data about customers to the super-secret intelligence agency.

[READ: Spy Chief Says Data Taps Analyzed Only for Reasonable Suspicion

Under that act, originally passed in 1978 and amended to give the government additional powers in 2008, FISA allows the government to collect data as long as those they are monitoring are "foreign powers" or "agents of foreign powers." When The Guardian ran a report earlier this week that exposed a top-secret court order from the Foreign Intelligence Surveillance Court, it simply gave some insight into how the process works.

"In the FISA context, [the NSA] believes all phone records are relevant to terrorism," says Michelle Richardson, an attorney with the American Civil Liberties Union. "It's one of those things where, when you look at the law, you can say 'this is too broad,' but when you see it out there in writing in a court order, it's different. They said we were crazies with tinfoil hats, but what we said was happening is happening. It's not until you see something like that FISA order in black and white that it hits you."

James Clapper, the Director of National Intelligence, said in a statement that recent news stories about NSA programs will "make it more difficult for [the government] to understand [terrorists'] intentions."

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"Surveillance programs like this one are consistently subject to safeguards that are designed to strike the appropriate balance between national security interests and civil liberties and privacy concerns," he said. "The program at issue here is conducted under authority granted by Congress and is authorized by the Foreign Intelligence Surveillance Court."

Though the EFF and others long suspected the NSA was using FISA to access telephone records, Thursday's report in the Washington Post detailing the specifics of an NSA and FBI program called PRISM, which allows the government "direct access" into the servers of at least nine Internet companies, including Microsoft, Facebook, Google, Yahoo and Apple, came as a bigger surprise.


Though the specifics of PRISM still aren't completely clear, it appears to use FISA to authorize the NSA to monitor emails, photographs, chats and other electronic information as long as an agent is at least "51 percent sure" that the person being monitored is foreign.

The ability of the government to take information it deems relevant to investigations without a warrant makes the FBI's claim that it's getting harder for them to monitor electronic communications ring hollow, according to Richardson.

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In 2011, Valerie Caproni, general counsel of the FBI testified before the House Judiciary Committee, saying that a "rapidly changing communications landscape [is] eroding the ability of the government to conduct court ordered intercepts of wire and electronic communications."

Caproni said that the FBI "confront[s], with increasing frequency, service providers who do not fully comply with court orders in a timely and efficient manner," a problem that the FBI has called "going dark." The agency and others have used this problem to push for the passage of a law commonly called CALEA-II, an update to the Communications Assistance for Law Enforcement Act passed in 1994 that requires all telephones to have built-in surveillance capabilities. CALEA-II would make it easier for the FBI and NSA to wiretap the Internet.

Amie Stepanovich, director of the Electronic Privacy Information Center's domestic surveillance project, says that with PRISM the government has "cut out the middle man" when it comes to accessing information.