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Is the NSA's Prism program legal?
To be clear, what's being called Prism really refers to the name of an internal government computer system that's used as part of a program known as the Collection of Intelligence Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (FISA), or the Section 702 programs for short, according to a DNI briefing document released Saturday.
Whistleblower Edward Snowden, 29, has claimed credit for releasing classified documents relating to two Section 702 monitoring programs. One is aimed at intercepting foreign online communications, including email, chat and VoIP communications; the other is tasked with gathering metadata relating to millions of phone calls, which could reveal the locations of callers as well as those of the people with whom they'd communicated, although not the content of calls.
[ How do system administrators fit into your company's security chain? Read NSA Prism Relies Heavily On IT Contractors. ]
President Obama Friday defended the programs, as well as the NSA's capture of telephone metadata. He noted that both programs have been "authorized by broad bipartisan majorities repeatedly since 2006."
"We've got congressional oversight and judicial oversight. And if people can't trust not only the executive branch but also don't trust Congress and don't trust federal judges to make sure that we're abiding by the Constitution, due process and rule of law, then we're going to have some problems here," he said.
In a press conference Saturday, White House spokesman Ben Rhodes said the Section 702 program "was reauthorized by Congress in December 2012, and it has a reporting requirement to Congress," meaning that the Director of National Intelligence and Attorney General must provide semiannual reports to legislators to review "the targeting procedures as well as the minimization procedures associated with targeting."
The phone metadata capture appears to be authorized by Section 215 of the Patriot Act.
Rhodes said briefings about the programs had been regularly delivered to the intelligence and judiciary committees in both the House and Senate. He also said that additional FISA briefings had been provided for about 13 legislators who requested information about how the program captures telephone metadata.
Sen. Dianne Feinstein (D-Calif.), who chairs the Intelligence Committee and has backed the programs, said the committee will hold a closed briefing Thursday for all senators, in which officials from the NSA, FBI and Justice Department will detail the surveillance programs in greater detail. The House Intelligence Committee plans to hold a similar hearing next Tuesday.
House speaker John A. Boehner (R-Ohio) told ABC News Tuesday that he's been fully briefed on the two programs that Snowden publicly revealed, and dismissed any threat to civil liberties. "When you look at these programs, there are clear safeguards," he said. "There's no American who's gonna be snooped on in any way-- unless they're in contact with some terrorists somewhere around the world."
But in a letter sent last week to Attorney General Eric Holder, the author of the Patriot Act, Rep. James Sensenbrenner (R-Wis.), said, "I am extremely disturbed by what appears to be an overbroad interpretation of the Act."
Similarly, Rep. Hank Johnson (D-NC) issued a statement calling for "a thorough and public debate on how our government can balance the need for national security while protecting the basic liberties of its citizens," saying that "Americans have a right to know the power that they are granting their government."
Privacy rights group EPIC filed a freedom of information request with the Department of Justice Friday, seeking the release of its legal justification for the Prism program. But the White House has been resisting such measures.
Friday the White House filed a motion opposing public release of a 2011 Foreign Intelligence Surveillance Court decision declaring some aspect of National Security Agency surveillance under the FISA Amendments Act to be unconstitutional or otherwise illegal, in response to a similar request from EPIC pertaining to the capture of telephone metadata, law professor Jonathan Adler at Case Western Reserve University in a said in a blog post.
President Obama, defending the NSA's monitoring programs, said access to captured data was only authorized using warrants under FISA, which in 1979 created the Foreign Intelligence Surveillance Court (FISC) to field requests from the Department of Justice for surveillance warrants against suspected foreign agents engaged in espionage or terrorism.
FISC is meant to be a safeguard. Yet the court appears to rubberstamp all such requests; only .03% have been rejected. That's based on annual Justice Department reports to Congress, which said that from 1979 through 2012, out of over 33,900 surveillance requests lodged by the Department of Justice, the court rejected only 11.
"The FISA system is broken," Marc Rotenberg, executive director of Electronic Privacy Information Center -- a privacy rights group -- told the Journal. "At the point that a FISA judge can compel the disclosure of millions of phone records of U.S. citizens engaged in only domestic communications, unrelated to the collection of foreign intelligence ... there is no longer meaningful judicial review."
But Timothy Edgar, a former top American Civil Liberties Union lawyer who joined the Director of National Intelligence in 2006 as a senior civil liberties official, said the process is "definitely not a rubber stamp." He told the Journal that the low level of rejections was down to the extent to which Justice lawyers vet all such requests before submitting them to the FISC.
Similarly, the American Civil Liberties Union (ACLU) and Yale Law School's Media Freedom and Information Clinic Monday filed a motion with FISC, requesting that the court publish its legal opinions "evaluating the meaning, scope, and constitutionality of Section 215."
Do the surveillance programs overreach and violate Americans' privacy? Public opinion appears to favor, slightly, the current course of action. According to a Pew Research Center and Washington Postsurvey conducted from June 6 to 9, in response to the statement that "NSA has been investigating people suspected of terrorist involvement by secretly listening in on phone calls and reading emails without court approval," 51% of respondents said they found it acceptable, while 47% didn't. Meanwhile, 62% said that having the government investigate terrorist threats was more important safeguarding people's privacy, while 34% disagreed.
Several information security experts have suggested that if the surveillance programs are too broad, however, it's not the fault of the intelligence community. "The highest priority at the NSA is avoiding infringing on citizen's rights. I know none of you will believe me, but it's true," said Robert David Graham, CEO of Errata Security, in a blog post. "I'm regularly astonished by the degree to which they bend over backwards to protect [Americans'] privacy."
So if you want to blame someone, says Graham, look to Congress. "The rank and file of the NSA is not your enemy. They carry out the mission that politicians give them, and do not cross the line with an almost religious fervor," he said. "It's the politicians who have moved that line. It's every politician who voted to extend the Patriot Act and empower the FISA court that you have to fight."