No Protection for International Communications: Russ Feingold Told Us So
Both the ACLU’s Jameel Jaffer and EFF have reviews of the government’s latest claims about Section 702. In response to challenges by two defendants, Mohamed Osman Mohamud and Jamshid Muhtorov, to the use of 702-collected information, the government claims our international communications have no Fourth Amendment protection.
Here’s how Jaffer summarizes it:
It’s hardly surprising that the government believes the 2008 law is constitutional – government officials advocated for its passage six years ago, and they have been vigorously defending the law ever since. Documents made public over the last eleven-and-a-half months by the Guardian and others show that the NSA has been using the law aggressively.
What’s surprising – even remarkable – is what the government says on the way to its conclusion. It says, in essence, that the Constitution is utterly indifferent to the NSA’s large-scale surveillance of Americans’ international telephone calls and emails:
The privacy rights of US persons in international communications are significantly diminished, if not completely eliminated, when those communications have been transmitted to or obtained from non-US persons located outside the United States.
That phrase – “if not completely eliminated” – is unusually revealing. Think of it as the Justice Department’s twin to the NSA’s “collect it all”.
[snip]
In support of the law, the government contends that Americans who make phone calls or sends emails to people abroad have a diminished expectation of privacy because the people with whom they are communicating – non-Americans abroad, that is – are not protected by the Constitution.
The government also argues that Americans’ privacy rights are further diminished in this context because the NSA has a “paramount” interest in examining information that crosses international borders.
And, apparently contemplating a kind of race to the bottom in global privacy rights, the government even argues that Americans can’t reasonably expect that their international communications will be private from the NSA when the intelligence services of so many other countries – the government doesn’t name them – might be monitoring those communications, too.
The government’s argument is not simply that the NSA has broad authority to monitor Americans’ international communications. The US government is arguing that the NSA’s authority is unlimited in this respect. If the government is right, nothing in the Constitution bars the NSA from monitoring a phone call between a journalist in New York City and his source in London. For that matter, nothing bars the NSA from monitoring every call and email between Americans in the United States and their non-American friends, relatives, and colleagues overseas.
I tracked Feingold’s warnings about Section 702 closely in 2008. That’s where I first figured out the risk of what we now call back door searches, for example. But I thought his comment here was a bit alarmist.
As I’ve learned to never doubt Ron Wyden’s claims about surveillance, I long ago learned never to doubt Feingold’s.
How do they know if the person abroad is a US citizen or not? The e-mail or the telephone aren’t marked.
How do they know…
exactly the point. they couldn’t hardly care – they (the control-freaks and apologists for same) just won’t flat-out admit it.
Well — obviously — they do know that the participants in that call either are or are not US citizens. That covers all options, so to be on the safe side they better collect it out of caution, right?
Either that, or they assume that joint participation in the breathing of air within the same global atmosphere constitutes waiver (or, even better, implied consent) for monitoring of activities within that public and globally-shared oxygen-nitrogen environment.
Collection point.
But how does that tell them if they’re dealing with US citizens on both ends, neither end, or one end only? It looks to me like they have to already know that.
What stops the NSA from working with their euphemistic “Corporate Partners” and mirroring strictly domestic calls and data to a foreign collection site? It keeps domestic communications domestic (so there’s no addtional lag or delay) and also provides a full-take copy to NSA, CIA, DIA, FBI (and any other foreign collaborators).
quote”What stops the NSA from working with their euphemistic “Corporate Partners” and mirroring strictly domestic calls and data to a foreign collection site? It keeps domestic communications domestic (so there’s no addtional lag or delay) and also provides a full-take copy to NSA, CIA, DIA, FBI (and any other foreign collaborators).”unquote
What stops it? Good question. I’ll tell you. A legal imperialism strong enough to overcome the present legal imperialism on the planet. That’s the point.
quote”The government also argues that Americans’ privacy rights are further diminished in this context because the NSA has a “paramount” interest in examining information that crosses international borders.”unquote
file under..
Things to remember when pledging allegiance to a flag.
quote”As I’ve learned to never doubt Ron Wyden’s claims about surveillance, I long ago learned never to doubt Feingold’s.”unquote
“To a great mind, nothing is little,’ remarked Holmes, sententiously.”
is there any law that prevents a communications company from looping every ones communications over seas at the ‘request’ of the government to obliterate all 4th amendment concerns ?
For many decades all communications lost protection when they went offshore. That we may now have any limits is better than it has been. But, I doubt there are meaningful restrictions on what is collected either inside or outside the US.
.
Mirrors on switches on fiber cables as they come onshore are collecting data that is by definition “foreign”, regardless of who it is to or from. In addition to the vagaries of routing, some email servers are located conveniently across the border in Canada. All my email comes and goes through Canada even though my host is based in the D.C. area. When traffic crosses the border in either direction it loses protection.
.
The Frontline piece stated repeatedly that the problem with NSA came when it was explicitly turned inward on domestic communications. That happened immediately after 9/11. NSA’s Thin Thread dealt with Constitutional privacy by encrypting US citizen communications that were intercepted. The bastards (Hayden et al, at Cheney/Addington’s direction on Bush’s war power authority) stripped out the encryption and collected all our domestic communications. That is the fundamental issue. That, as old NSAers will tell you, enables tyranny. Part of what was illustrated in the Frontline piece was how closely that policy was held. They knew what they were doing was sedition.
.
There is a legitimate foreign intelligence mission for NSA. Aside from the embarrassment, I don’t give a damn if NSA bugs Merkel or any other foreign target. Bugging the Germans has helped keep us free since 1943. While there are some, it is not a world full of nice people singing Kumbaya. The issue for US citizens in the US is Constitutional protections of our rights.
.
Gaming borders and the architecture of the web to collect otherwise protected traffic is part part of the fundamental issue. Those activities further the destruction of domestic Constitutional protections.
.
I’d suggest focusing on stopping the massive and systemic 4th amendment violations first. When that’s done it is time to see what’s left to fix on the “little fiddly bits” around the edges as they put it in “Hitchhiker’s Guide to the Galaxy”.
.
The Frontline piece, or familiarity with the people and issues it presented are the primer we all need to have a witting conversation. Binney, Drake, Weiber, Loomis, Roark need to be household names. Also, read everything Bamford has ever written.
Why don’t you care about our government spying on other countries’ leaders, politicians, or diplomats? Isn’t the crux of this issue the invasion of privacy on everyone, everywhere? Isn’t it hypocritical to want this ideal for Americans but not for anyone else? Our laws and rights are only as strong as the weakest ones. We should be fighting to extend to others the same rights we have and want. This is what will create worldwide stability, not suspicion and mistrust. Further, a lot of our country’s spying is done for reasons of corporate espionage. Ask Siemans about this as they’ve been a target of our government in Germany. This issue has severely tainted our image as a country that will defend basic human rights…everywhere. Our country’s true motives of empire have been revealed.
Why don’t you care about our government spying on other countries’ leaders, politicians, or diplomats? Isn’t the crux of this issue the invasion of privacy on everyone, everywhere? Isn’t it hypocritical to want this ideal for Americans but not for anyone else? Our laws and rights are only as strong as the weakest ones. We should be fighting to extend to others the same rights we have and want. This is what will create worldwide stability, not suspicion and mistrust. Further, a lot of our country’s spying is done for reasons of corporate espionage. Ask Siemans about this as they’ve been a target of our government in Germany. This issue has severely tainted our image as a country that will defend basic human rights…everywhere. Our country’s true motives of empire have been revealed.
“Isn’t the crux of this issue the invasion of privacy on everyone, everywhere?” – In a perfect world perhaps, but we are far from there. Everyone does not wish us well (and often for good reason, but that is another topic). National technical means have helped keep us “free”. Those can be, and often are, infringing on other nationals in their countries.
.
It is not a crime in Germany for NSA to spy on US citizens in the USA. Should it be?
.
Would you have objected to our intercepts of Nazi Enigma communications that were arguably the difference between victory and defeat in WWII?
.
Would you have objected to intercepts of communist communications that helped us prevail in the cold war?
.
In the late 1920’s Secretary of State Henry Stimson proclaimed that “Gentlemen do not read other gentlemen’s mail”. Our blinding that followed the shutdown of our communications intelligence capabilities helped set the stage for WWII. Do you want to return to those days?
.
.
“Our laws and rights are only as strong as the weakest ones. We should be fighting to extend to others the same rights we have and want. This is what will create worldwide stability…” – That is a wonderful goal, and I share it with you. I would suggest that achieving it is only possible if we first establish our own Constitutional rights at home. There is not much chance of exporting laws, rights and stability that we do not enjoy ourselves. The crime, sedition, is turning NSA inwards. We need to start by doing something about that.
.
“a lot of our country’s spying is done for reasons of corporate espionage.” You may be better informed on this than I. As far as I am aware our spying has been targeted on national security issues, not corporate profits. But, I am ready to listen. Neo-con fascism is not attractive to me.
.
With the exception of the brief, and ill conceived, period between the world wars, we as a nation have understood the need for information about adversaries and allies intent. Members of the NSA’s Cryptologic Hall of Honor as well as those interviewed in the recent Frontline show, have been committed to obtaining the foreign information needed to help keep us free. They have been equally committed that turning the tools they developed to protect us inward enabled tyranny.
.
To confuse the abrogation of our fundamental Constitutional rights with unpleasant intrusion into foreign nationals privacy seems to me profoundly naive. It also seems to distract focus from the domestic Constitutional crisis we have experienced since 9/11.
.
The intent of my comments, both original and current, is to focus attention on the destruction of our domestic US rights as guaranteed in the 1st, 4th and 5th amendments to the Constitution. I encourage you to join in redressing those abuses right here in the USofA.
I appreciate such a cogent response. A few thoughts as replies:
-have you seen this from Der Spiegel? http://freesnowden.is/2014/05/10/germany-exploits-legal-advice-in-attempt-to-avoid-snowden-testimony/
If our rights don’t apply to Germany than why do our laws for crimes possibly apply? Unless I’m misunderstanding this?
-WWII was just that: a world war. Our “war” is one-sided as we use our might to bully the Five Eyes into cooperation with surveillance. That argument is a red herring in my opinion as millions of Jews & dissidents were being slaughtered. This time we’re the ones performing targeted assinations killing mostly innocents.
-has the US “won” the cold war? Look at the fractured former USSR, nothing but fiefdoms controlled by gangster capitalists. That too is a red herring in that the US was trying to control an ideology from spreading around the world. Ideas are difficult to kill. This hasn’t stopped western capitalists from shipping most of their manufacturing over to PROC (ie China). Seems when there is $ to be made ideology is forgotten. This applies to post WWII Germany with the US & John J. McCloy, as well.
It’s hard to unravel all of these interconnected ideas and points you presented. But essentially they stem, I believe, from inequality due to state hegemony. We are definitely living in a time of economic Fascism where governments have tacitly & overtly invited corporations into our halls of government. It is understood that a large crisis is looming vis-a-vis climate change. The upheaval this will entail, along with social movements demanding a change in how we use/distribute resources & wealth, is the driving force behind domestic surveillance.
There is an attempt to divert attention from this by applying surveillance to “others” when in fact we here in this country are the “others”. I can’t prove all of this but it’s just a reasoned hunch on my part.
I agree with you; we must fight to ensure that our rights remain intact even though most Americans are ignorant of them and don’t use them on a daily basis. I’m paraphrasing Snowden here when he stated in this TEDTalk that rights are there in case we need them one day. We definitely need them today, especially in light of the NDAA and Hedges, et al vs Obama.
And I appreciate yours. I always learn from a vigorous discussion. It helps me see other viewpoints and it makes me examine my own. I expect when we get down to it you and I have more in common than not.
.
I had forgotten the threats to the Bundestag. Those threats of criminalization, when made to US citizens exercising 1st amendment journalistic rights domestically, pushed The Intercept to start publishing, and added drama to Greenwald’s recent return as part of the Nobel Prize. The answer to your question is that the USG does not extend domestic US protections to foreign nationals in their own country, but does seek to project domestic US criminal sanctions abroad. That hypocrisy is part of what has made us so “loved” around the world.
.
I won’t argue priorities in WWII with you. I will surely agree that we are currently killing innocents. We killed twice as many women and more children in one strike in Yemen than Adam Lanza did at Sandy Hook. Yet there are no threats of criminal prosecution for mass murders abroad by US citizens. If Lanza is a mass murderer, why not the President who ordered the killing of even more innocents in a country with which we are not at war?
.
The USSR collapsed, and we did not, so there is some logic to the idea that we “won” the cold war. I would argue that your statement “…nothing but fiefdoms controlled by gangster capitalists” applies domestically as much as it does to Russia. We call them Goldman Sachs, Citi, Mittens, Koch… Neither here nor there is it any way to run a country.
.
“We are definitely living in a time of economic Fascism where governments have tacitly & overtly invited corporations into our halls of government.” Ironic that we fought WWII to protect the world from fascism only to embrace it domestically. Our founders instituted the idea of “mixed capitalism” to harness the energy of free enterprise and to protect all of us, plus the capitalists themselves, from their excesses and greed. That has not worked out so well recently. Citizens United, et al give the capitalists themselves the opportunity to control the legislative process that was designed to protect us from them.
.
Domestic surveillance enables tyranny. NSA, FBI, DHS, etc are providing that surveillance. Our first task must be to restore Constitutional rights and balance domestically. Until that is done there is no hope of projecting values abroad, even if we could agree on which values, how far, and to whom.
.
The opportunity, and obligation, to assemble and petition to help our government see the error of its ways is our Constitutional mechanism for change. Despite the Occupy experience, it remains our best hope. Until we get out from under the shadow of potential tyranny, enabled by turning NSA’s tools inward on our every communication and transaction, there is no expectation we can help the Germans or anyone else.
.
Put another way, “Physician, heal thyself”.
I was under the impression that SCOTUS had ruled on this more than 100 years ago when they concluded that the U.S. Government is a product of the constitution and thus cannot act outside its bounds even internationally. Is this diminished expectation claim just a lame attempt to sidestep around it or are they ignoring that altogether?
I was indoctrinated to believe in Monroe. Did SCOTUS put the kibosh on the rational for Operation Condor? Could have fooled me. Now we drone the globe. Who said that bird was in danger of extinction? It’s deadly!
I said this before, once the signal can be captured by anyone, my guess the weasels have declared it fair game for collection. If google can capture it, then the NSA owns it and we know google reads your email and everything you type in chrome, and provides that website blacklist that every provider checks, so they know exactly which websites you have been at. If it hits a microwave tower, NSA owns it. If you are within 100 miles of a border entry point, then they do not need a warrant to search you, your person invasively, or your belongings. Don’t be fooled by that lame schematic of the San Francisco ATT wire room and assume they only could filter a few bytes. I hear there was enough spare fiber bandwidth to pipe every bit to Maryland or Utah or where ever.
While the frontline and blogfest look at passive data collection and search, next topic will be the revelation of how many computers Cheney’s legacy has turned into bots. And hello!, all this to misguide and entrap a few Islamic teenagers while financial fraud runs amuck in the US. Who owns you?
Peplin,
You would think they were safety oriented, but they are regressively data hungry. Rather than seal the meal with encrypted steel, they would rather serve us through backwashing pipes. If all were encrypted, wouldn’t their reason for being come to zilch? Who needs cyber security when the service is encrypted to the hilt?
Without their weakened net, they are irrelevant. Thus they must preserve the means of our self-destruction.
It is likely that if there is a higher level of intelligence out there what they are reading of what we think is worth saving must make them put the “Do not feed the rabid animals” sign on this navel gazing planet.