In Depth Review: New NSA Documents Expose How Americans Can Be Spied on Without A Warrant

A new secret batch has been published by guardian which shows how NSA and FISA court documents with details regarding how the Government had been gaining access to the email accounts of the American people. The documents lays stress on the problems that rests with imposing limitation on the surveillance program of NSA.

This new document which was released yesterday and which is dated July 2009 outlines the details about the surveillance programs of NSA in which they gather and collect massive stream and information and content such as telephone calls and emails and they store such information and content which is impossible if they go for a warrant.

Among the two documents which has been published by the Guardian, one states the procedures which determine that if the target they have set is a foreigner for the purpose of investigation or surveillance based on FISA amendment act, and the other documents describes the procedures for the minimization on NSA’s program when they counter or deal with persons of the United States and also deals with the ways through which they keep the communication of such persons.

Weak standards for the Purpose of avoiding the intentional targeting of Americans

The FAA act has been given shape and was implemented back in 2008 to impose certain important restrictions on the spying programs which was started by NSA in 2001. The law which was designed to avoid the intentional targeting of Americans received a lot of criticism. The law was basically to check that the act of spying Americans is unintentional rather than protecting them from being spied.

The Washington Post has previously signified in a report that NSA just need about 51 percent confidence for believing on the foreignness of a person. The new documents show that NSA can go on with their spying a target unless they can establish with certainty that the person is an American. This means that a person unless verified with certainty as a citizen of the United States will be presumed as a non-citizen.

The document has also revealed that NSA also manages a database for all the content of communication and this fact has been previously concealed by them through their art of playing with words. The document contain instruction for NSA that for determining whether the person is a United States citizen or not, they should check he depository or the database that they have for the content and the internet communication.

The document has now made evident the government’s unconstitutional act of misusing the Patriot Act section 215 by maintain a database of content and communication such as telephone calls and emails. Though President Obama has stated that the information contains no names but if we go with the documents, it states that a separate database has been maintained for this purpose and it contains the telephone numbers, names and other related information.

Minimizing the rules of domestic communication cluttered exceptions.

The second document which came to the scene yesterday explains the NSA’s process of minimization through the exposure of United States persons with the limitation, but NSA has now decided to limit such process of minimization.

The document points out the loopholes which allow NSA to access the data and read the emails without any warrant. The documents states that they can utilize and retain information of United States persons if:

  • If the retention was due to the disability of NSA to filter communication.

  • If the information is on some criminal activity or any threat to harm property or people. In such a case, the fourth amendment would be meaningless because the government could search any home every day.

  • The information can be encrypted and could be utilized for the purpose of traffic analysis.

The protection of your rights is summed up in the statement of NSA according to which the personnel has the right of discretion for the purpose of determining that the information obtained needs to be minimized or not. The government though claims that the call of any American can only be listened after court’s order but it is like the judgment call of an analyst who decides with his discretion that whether a person is or is not an American. If the discretion or the judgment of the personnel suggests that the person is not an American, no protection or constitutional protection is available.

The other loopholes that are contained in the minimization document is the discretion of NSA in forwarding unimmunized data to FBI and CIA or to the foreign government for the purpose of linguistic or technical assistance. Though such forwarding of information to the foreign government will subject such government to some rules, but the assurance that the data will be misused is limited.

Using encrypted emails or Tor is the base for surveillance.

EEF has always recommended and laid stress on the use of PGP, Tor and email encryption for protecting the location of the target and protecting their privacy right, but they are disturbed by the Approach and the use of such information or communication by NSA.

The right to use an anonymous speech in USA is constitutional and the exercise of such right by any one does not allow the government to use it as a reason for invading his/her privacy. The NSA manipulates this right by blowing that when a person is anonymous, this means that an American person is not being targeted intentionally. So they are of the view that when you use Tor, the right to protection as a US person is not applicable.

The other displeasing fact is that NSA can hold any information or communication solely for reason that it is encrypted and may hold it for as long as the information is not decrypted and can even hold it for five more years after such decryption.

Traffic Analysis

NSA says that they also have the right to retain information which contains technical data and by technical data they mean information for cryptographic, signal exploitation and traffic analytic purposes.

So they are basically suggesting that they can utilize information for traffic analysis. This blows the concept of limitation because all the information can be utilized for traffic analysis and hence they can keep all without discarding it and there is no time frame for keeping such information.

Privileges for attorney client is meaningless

One of the most cherished and old held privileges in the law of the USA is for the attorney client. According to a court of law, the privilege suggests that a person who goes for the advice of any lawyer has the right that his information will not be leaked out to anyone.

NSA’s document reveals that they can violate this privilege. They will only stop intersecting communication of a target when such person is facing a criminal indictment in USA and is communicating with an attorney for this purpose.

So a distant view of this privilege according to NSA is that in many cases, they will spy on the communication that goes on between a person and his/her attorney. ACLU was rightly worried about this fact when they went on to file a suit against the constitutional viability of FISA act. They averred that the attorney who are working with their clients overseas are ethically obliged not to conduct any communication with them through the internet because NSA in such case can access their emails. However the Supreme Court rejected their suit on grounds of lack of any standing.

Even in the case where the privilege is applicable, NSA keeps the information for usage for other purposes other than for use in the prosecution. Unless the general counsel of NSA approves, the information can be utilized for any purpose. This means that the attorney-client privilege act is not being followed by any means. The act was basically designed to allow the client to freely communicate all the information and truth to his attorney without any hesitation and is not only related to prevent such communication from being utilized as an evidence in the criminal case.

Gist Of all this: There is no privacy of your communication and all of it Belongs to the USA government

To sum up all of this, if you are using encryption in your communication, your information and data will be kept by the government forever and in case you are using Tor the data will be retained for a period of at least 5 years. If an American communicates with any person outside the boundaries of US, the data will be retained for5 years. In your communication with your attorney, your communication is not subject to privacy and the information can be forwarded to FBI for being used as an evidence in any crime. All of such keeping of personal information and its usage is without any warrant and even without any specific order from FISA.

So it’s high time that the government should be held responsible for violating the constitution.


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