AACSB standards: Social and Ethical Issues, Technology in Society
The Central Intelligence Agency (CIA) conducts foreign covert operations, counterintelligence operations, and collects and analyzes foreign intelligence for the president and his staff to aid in national security decisions. The National Security Agency (NSA) is responsible for global monitoring, collection, and processing of information for foreign intelligence and counterintelligence purposes. The Federal Bureau of Investigation (FBI) conducts domestic counterintelligence and counterterrorism operations in addition to its role as the lead law enforcement agency in the country.
These three agencies have implemented sophisticated programs to capture, store, and analyze electronic communications. The Downstream program (formerly called PRISM) extracts data from the servers of nine major American Internet companies including AOL, Apple, Facebook, Google, Microsoft, Paltalk, Skype, Yahoo, and YouTube to obtain direct access to audio, video, photographs, emails, documents, and connection logs for each of these systems. The Upstream program taps into the infrastructure of the Internet to capture the online communications of foreigners outside the United States while their communications are in transit. The leaders of the intelligence agencies argue that these programs are essential to fighting terrorism. The agencies can also provide a dozen or more examples of how use of the data gathered by these programs has thwarted the efforts of terrorists around the world.
The programs are authorized by Section 702 of the FISA Amendments Act which authorizes surveillance of any foreigner overseas, provided the purpose is to obtain foreign intelligence. The Act loosely defines foreign intelligence to mean any information that relates to the conduct of foreign affairs. This broad definition means that the target being surveilled need not be a terrorist. The target needs only to be thought to have information that is relevant to the governments foreign intelligence objectivewhatever that may be.
The process of gathering foreign electronic communications necessarily means the incidental capture of many conversations involving an American (who may be here in the United States) and a foreign target. They may well be having a totally innocent communication with a foreign friend, relative, or business partner who is not suspected of any wrongdoing whatsoever. The total number of Americans communications incidentally collected since the inception of Section 702 is well into the millions.
Section 702 also allows the government to pool all the messages it intercepts into a giant database and then search the database, including conversations involving Americans without a warrant. Warrantless surveillance of communications between Americans and foreigners is known as a backdoor search because it effectively evades other provisions of United States law that require an individualized warrant or court order for access to such data. The agencies are authorized to conduct unlimited warrantless backdoor searches of those communications for information about Americans or individuals located in the United States during any investigation. The agencies are only required to obtain a warrant to view Americans data if the investigation is not related to national security.
There is a rigorous process that law enforcement agents must go through to wiretap a phone with three key requirements that clearly distinguishes this method of gathering data from Downstream and Upstream. First, before beginning the wiretap, agents must prove to a judge that they have probable cause to believe that tapping a specific phone will help them solve serious federal crimes such as terrorism, money laundering, or drug trafficking. Second, a time limit must be defined for the wiretapping to start and end; it cannot go on forever. Third, the wiretapping is limited only to those conversations that are likely to yield evidence against the suspect.
There are also major differences between the way Downstream and Upstream programs collect data and the way data is gathered under an ordinary search warrant. Downstream and Upstream gather all the data there is to be collected and create a source of data that can be queried to find evidence of a crime. If a police department obtains a search warrant to search a house for illegal drugs, agents can lawfully enter the house and search every room. But after finding (or failing to find) the drugs, they cannot then go rummaging through file cabinets for evidence of sex-trafficking and then seize computers to search for evidence of tax evasion, even though the officers are lawfully present in the house. They must get a separate warrant to conduct each search in advance of any search.
Critical Thinking Questions
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