After Edward Snowden’s 2013 revelations about government surveillance, there was an increase in interest on such topics; people suddenly cared — at least for a little while — about whether their communications and internet travels were private. That interest faded after a bit, as it does with most other news stories. Now with the release of Vault 7, we are seeing a resurgence of that interest. While it may also be temporary, people seem to care about things like warrantless surveillance again for the time being.
On the 12 February episode of Face the Nation, Sen. Rand Paul (R-KY) explained clearly how the surveillance issue works.
The way it works is, the FISA court, through Section 702, wiretaps foreigners and then [NSA] listens to Americans. It is a backdoor search of Americans. And because they have so much data, they can tap — type Donald Trump into their vast resources of people they are tapping overseas, and they get all of his phone calls…They are not targeting Americans. They are targeting foreigners. But they are doing it purposefully to get to Americans.
What’s going on here is very clever wordplay. The NSA wiretaps foreigners — as it should — but it’s using that capability and legal ability to also collect the communications of everyday Americans as well; so much so, that their underlying reason to tap foreigners is to collect on Americans. Meanwhile, they can “truthfully” claim that they are not collecting data without a warrant. Technically, they’re collecting on people outside the U.S. Americans are just happening to get caught up in it too.
Certainly the NSA and other agencies — and even officials — claim that it’s not happening and would be illegal if it were. The problem is that they are easily proven to be liars — or at least, playing word games with the American people. Section 702 of the Foreign Intelligence Surveillance Act gave them the power to collect on Americans — as long as it was “inadvertent.” In other words, the government cannot say, “Let’s go collect John Smith’s data,” but if they just happen to pick up John Smith’s data while collecting on others outside the US, that’s fine and dandy.
Perhaps even more disturbing is that once they have the data, regardless of whether it was collected “inadvertently” or as part of a targeted effort, it’s fair game for combing through at their leisure. All the government has to do, quite literally, is claim that they didn’t mean to collect it; it just came in as part of them tapping someone else, and they are allowed to keep all of it — which was their purpose all along. How do we know this? Because they specifically said so. From an email the ACLU wrote to The Guardian in 2013:
On its face, the 2008 law gives the government authority to engage in surveillance directed at people outside the United States. In the course of conducting that surveillance, though, the government inevitably sweeps up the communications of many Americans. The government often says that this surveillance of Americans’ communications is ‘incidental’, which makes it sound like the NSA’s surveillance of Americans’ phone calls and emails is inadvertent and, even from the government’s perspective, regrettable.
“But when Bush administration officials asked Congress for this new surveillance power, they said quite explicitly that Americans’ communications were the communications of most interest to them. See, for example, FISA for the 21st Century, Hearing Before the S. Comm. on the Judiciary, 109th Cong. (2006) (statement of Michael Hayden) (stating, in debate preceding passage of FAA’s predecessor statute, that certain communications ‘with one end in the United States” are the ones “that are most important to us‘).
The principal purpose of the 2008 law was to make it possible for the government to collect Americans’ international communications – and to collect those communications without reference to whether any party to those communications was doing anything illegal. And a lot of the government’s advocacy is meant to obscure this fact, but it’s a crucial one: The government doesn’t need to ‘target’ Americans in order to collect huge volumes of their communications.
What does this mean for the average Joe Smith? It means that later, when the government decides that it doesn’t like something Joe says or does, agents can go back and dig through all of the information that was previously collected on Joe, looking for dirt.
As we keep trying to drive home, it does not matter if the government is not allowed to do something. They simply get around the law, the Constitution, and anything else in their way. The argument that “it’s unconstitutional” or “it’s illegal” doesn’t mean a thing. It’s like any other crime. Saying something is illegal doesn’t magically stop it from happening; criminals know right and wrong, they just choose to commit the crime.
When it comes to violating the Constitutional rights of its citizens, government agencies are no different. They know the law — they just don’t care.