Update: The initial disclosure by Greenwald and the Guardian has since been followed by reports from, first from the Washington Post and followed by the New York Times, Guardian, and Wall Street Journal confirming and dramatically enlarging the scope of what is known about ongoing government surveillance. In addition to Verizon, the reports cite AT&T and Sprint, nine consumer technology platforms, including Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, and Apple, as well as unnamed ISPs, credit card, and financial companies. The program, named PRISM, is described as offering data collection “directly from the servers” of these firms. Spokespersons from these companies have denied any knowledge of the PRISM program.
This morning, the Guardian’s Glenn Greenwald revealed a leaked court document that appears to show that the U.S. military intelligence National Security Agency has been engaged in widespread surveillance of the mobile phone traffic of American citizens. The court order, issued by the secretive U.S. Foreign Intelligence Surveillance (FISA) court, orders U.S. telco giant Verizon to handover on an “ongoing, daily basis” the call record data on all calls within its systems. Access condemns in the strongest possible terms the secret, disproportionate, and widespread surveillance of any civilian population in direct violation of their human rights.
The order, issued by the FISA court on April 25, grants the U.S. government access to the call record data of all Verizon customers and users for a three-month period, ending July 19, 2013. Although the order explicitly excludes “substantive content,” meaning the recording of the audio of a call, it grants the NSA access to a host of sensitive call record data, or ‘metadata,’ including the identity of the caller and recipient, the time and duration of the call, information about the handset of the callers, and call routing information.
Many observers believe that this single, limited-term order is likely just a glimpse into a broader, long-term policy of surveillance, one that likely includes all the other major U.S. telcos, such as AT&T, T-Mobile, and Sprint, and that this particular court order represents one in a series of renewals allowing perpetual data gathering. [Update: subsequent reports indicate this is part of a broad national surveillance program involving other major U.S. telcos, consumer internet platforms, ISPs, and banks.]
This ongoing pervasive and persistent surveillance of Verizon customers–certainly including US citizens, residents, and foreign nationals–is a clear violation of both international human rights instruments, including the right to procedural fairness and the right to privacy without arbitrary or unlawful interference: all as enshrined in the International Covenant on Civil and Political Rights (ICCPR), which the United States has ratified. And while the program may be legal under U.S. law, and possibly even constitutional, it is certainly an affront to the principles of the 4th Amendment to the U.S. Bill of Rights, intended to guard against unreasonable search and seizure.
A recent report by the UN Special Rapporteur on Freedom of Expression, Frank La Rue, found that the superior technical capabilities of states, along with the increasingly favorable economics of surveillance, means that states can now “achieve almost complete control of tele- and online communications.” In its section on the extra-territorial application of surveillance law, the report made special notice of FISA, the instrument used to justify this current court order. La Rue cited the U.S. legislation as part of “alarming trend towards the extension of surveillance powers beyond territorial borders,” which would increase the “risk of cooperative agreements between State law enforcement and security agencies to enable the evasion of domestic legal restrictions.”
As a result, the U.S. delegation to the Human Rights Council declined “to endorse all of the conclusions of the report.” In declining to fully endorse the report, the U.S. put forward a statement that it:
“conducts surveillance for lawful purposes, pursuant to laws that are transparent, adopted pursuant to democratic processes, and subject to oversight by all three branches of government. In fact, the Foreign Intelligence Surveillance Act and its recent amendments, which the report mischaracterizes as providing a “blanket exception to the requirement for judicial authorization,” are expressly designed to bring certain privacy-impacting activities under judicial and congressional supervision. Such surveillance, used appropriately, supports human rights [emphasis ours].”
Although there is no indication that the projects exposed by the Verizon court order are in fact illegal–statements from the U.S. Director of National Intelligence as well as the White House and Members of Congress situate the program as authorized under Section 702 of FISA, and indicate full Congressional, executive, and judicial oversight–the application of the law is a clear abuse of intent, and exposes a massive fissure between public presentation of the law as narrowly tailored and applied, and the disturbingly broad practical application revealed by this court order.
Again in the words of La Rue, these forms of surveillance raise “serious concern with regard to the… inability of individuals to know [emphasis ours] that they might be subject to foreign surveillance, challenge decisions with respect to foreign surveillance, or seek remedies.” Earlier this year, the U.S. Supreme Court threw out a constitutional challenge to FISA, Clapper v. Amnesty International USA, on similar grounds for ‘lack of standing.’ In a five to four decision, the majority dismissed the case, finding that the plaintiffs lacked the right to challenge the law because of their inability to demonstrate ‘impending harm‘ — that is, they couldn’t prove they were in fact being surveilled.
The ongoing programs to surveil American citizens and foreign nationals are an abuse of power wholly incompatible with democratic and human rights principles, and set deeply worrying precedents for the legitimization of pervasive and persistent surveillance of citizens around the world. Access condemns in the strongest possible terms the secret, disproportionate, and widespread surveillance of any civilian population in direct violation of their human rights.