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Our goal is to highlight one of the most important ways that the government collection of telephone records is unconstitutional: it violates the First Amendment right of association. When the government gets access to the phone records of political and activist organizations and their members, it knows who is talking to whom, when, and for how long. This so-called “metadata,” especially when collected in bulk and aggregated, tracks the associations of these organizations. After all, if the government knows that you call the Unitarian Church or Calguns or People for the American Way or Students for Sensible Drug Policy regularly, it has a very good indication that you are a member and it certainly knows that you associate regularly. The law has long recognized that government access to associations can create a chilling effect—people are less likely to associate with organizations when they know the government is watching and when the government can track their associations. 

The case challenges the mass telephone records collection that was confirmed by the FISA Order that was published on June 5, 2013 and confirmed by the Director of National Intelligence (DNI) on June 6, 2013. The DNI confirmed that the collection was “broad in scope” and conducted under the “business records” provision of the Foreign Intelligence Surveillance Act, also known as section 215 of the Patriot Act and 50 U.S.C. section 1861. The facts have long been part of EFF’s Jewel v. NSA case. The case does not include section 702 programs, which includes the recently made public and called the PRISM program or the fiber optic splitter program that is included (along with the telephone records program) in the Jewel v. NSA case. 

The First Amendment right of association is a well established doctrine that prevents the government “interfering with the right to peaceably assemble or prohibit the petition for a governmental redress of grievances.” The most famous case embracing it is a 1958 Supreme Court Case from the Civil Rights era called  NAACP v. Alabama. In that case the Supreme Court held that it would violate the First Amendment for the NAACP to have to turn over its membership lists in litigation. The right stems from the simple fact that the First Amendment protects the freedom to associate and express political views as a group. This constitutional protection is critical because, as the court noted “[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association[.]” NAACP v. Alabama, 357 U.S. at 460. As another court noted: the Constitution protects freedom of association to encourage the “advancing ideas and airing grievances” Bates v. City of Little Rock, 361 U.S. 516, 522-23 (1960).

The collection and analysis of telephone records give the government a broad window into our associations. The First Amendment protects against this because, as the Supreme Court has recognized, “it may induce members to withdraw from the association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of their exposure.” NAACP v. Alabama, 357 U.S. at 462-63. See also Bates, 361 U.S. at 523; Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539 (1963).  Privacy in one’s associational ties is also closely linked to freedom of association: “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.” NAACP v. Alabama, 357 U.S. at 462. 

The Supreme Court has made clear that infringements on freedom of association may survive constitutional scrutiny only when they “serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.” Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984); see also NAACP v. Button, 371 U.S. at 341; Knox v. SEIU, Local 1000, 132 S. Ct. 2277, 2291 (2012)  Here, the wholesale collection of telephone records of millions of innocent Americans’ communications records, and thereby collection of their associations, is massively overbroad, regardless of the government’s interest. Thus, the NSA spying program fails under the basic First Amendment tests that have been in place for over fifty years.

But training materials for XKeyscore detail how analysts can use it and other systems to mine enormous agency databases by filling in a simple on-screen form giving only a broad justification for the search. The request is not reviewed by a court or any NSA personnel before it is processed.

But XKeyscore provides the technological capability, if not the legal authority, to target even US persons for extensive electronic surveillance without a warrant provided that some identifying information, such as their email or IP address, is known to the analyst.

One document notes that this is because "strong selection [search by email address] itself gives us only a very limited capability" because "a large amount of time spent on the web is performing actions that are anonymous."

One document, a top secret 2010 guide describing the training received by NSA analysts for general surveillance under the Fisa Amendments Act of 2008, explains that analysts can begin surveillance on anyone by clicking a few simple pull-down menus designed to provide both legal and targeting justifications.

An NSA tool called DNI Presenter, used to read the content of stored emails, also enables an analyst using XKeyscore to read the content of Facebook chats or private messages.

William Binney, a former NSA mathematician, said last year that the agency had "assembled on the order of 20tn transactions about US citizens with other US citizens", an estimate, he said, that "only was involving phone calls and emails". A 2010 Washington Post article reported that "every day, collection systems at the [NSA] intercept and store 1.7bn emails, phone calls and other type of communications."

Background: The Stop Arming Terrorists bill prohibits U.S. government funds from being used to support al-Qaeda, ISIS or other terrorist groups. In the same way that Congress passed the Boland Amendment to prohibit the funding and support to CIA backed-Nicaraguan Contras during the 1980’s, this bill would stop CIA or other Federal government activities in places like Syria by ensuring U.S. funds are not used to support al-Qaeda, Jabhat Fateh al-Sham, ISIS, or other terrorist groups working with them. It would also prohibit the Federal government from funding assistance to countries that are directly or indirectly supporting those terrorist groups. The bill achieves this by: Making it illegal for any U.S. Federal government funds to be used to provide assistance covered in this bill to terrorists. The assistance covered includes weapons, munitions, weapons platforms, intelligence, logistics, training, and cash. Making it illegal for the U.S. government to provide assistance covered in the bill to any nation that has given or continues to give such assistance to terrorists. Requiring the Director of National Intelligence (DNI) to determine the individual and groups that should be considered terrorists, for the purposes of this bill, by determining: (a) the individuals and groups that are associated with, affiliated with, adherents to or cooperating with al-Qaeda, Jabhat Fateh al-Sham, or ISIS; (b) the countries that are providing assistance covered in this bill to those individuals or groups. Requiring the DNI to review and update the list of countries and groups to which assistance is prohibited every six months, in consultation with the House Foreign Affairs and Armed Services Committees, as well as the House Permanent Select Committee on Intelligence. Requiring the DNI to brief Congress on the determinations.

Background: The Stop Arming Terrorists bill prohibits U.S. government funds from being used to support al-Qaeda, ISIS or other terrorist groups. In the same way that Congress passed the Boland Amendment to prohibit the funding and support to CIA backed-Nicaraguan Contras during the 1980’s, this bill would stop CIA or other Federal government activities in places like Syria by ensuring U.S. funds are not used to support al-Qaeda, Jabhat Fateh al-Sham, ISIS, or other terrorist groups working with them. It would also prohibit the Federal government from funding assistance to countries that are directly or indirectly supporting those terrorist groups. The bill achieves this by: Making it illegal for any U.S. Federal government funds to be used to provide assistance covered in this bill to terrorists. The assistance covered includes weapons, munitions, weapons platforms, intelligence, logistics, training, and cash. Making it illegal for the U.S. government to provide assistance covered in the bill to any nation that has given or continues to give such assistance to terrorists. Requiring the Director of National Intelligence (DNI) to determine the individual and groups that should be considered terrorists, for the purposes of this bill, by determining: (a) the individuals and groups that are associated with, affiliated with, adherents to or cooperating with al-Qaeda, Jabhat Fateh al-Sham, or ISIS; (b) the countries that are providing assistance covered in this bill to those individuals or groups. Requiring the DNI to review and update the list of countries and groups to which assistance is prohibited every six months, in consultation with the House Foreign Affairs and Armed Services Committees, as well as the House Permanent Select Committee on Intelligence. Requiring the DNI to brief Congress on the determinations.

[i] Levant Front (U.S. backed, via the MOC in Turkey) is working under an Ahrar al Sham led umbrella group: http://www.understandingwar.org/sites/default/files/December%202%20EDITS%20COT_2.pdf ; U.S. support for Levant Front: http://carnegie-mec.org/diwan/57605?lang=en ; CIA groups cooperated with Jayesh al-Fateh http://www.thedailybeast.com/articles/2016/01/19/the-cia-s-syria-program-and-the-perils-of-proxies.html; U.S. weapons arriving in Syria through covert, CIA-led program, via Saudi Arabia and Turkey; CIA can provide support http://www.reuters.com/article/us-usa-syria-obama-order-idUSBRE8701OK20120802

Director of National Intelligence James Clapper, for instance, responded to the Petrobras revelations by claiming: “It is not a secret that the Intelligence Community collects information about economic and financial matters…. What we do not do, as we have said many times, is use our foreign intelligence capabilities to steal the trade secrets of foreign companies on behalf of—or give intelligence we collect to—U.S. companies to enhance their international competitiveness or increase their bottom line.” But a secret 2009 report issued by Clapper’s own office explicitly contemplates doing exactly that. The document, the 2009 Quadrennial Intelligence Community Review—provided by NSA whistleblower Edward Snowden—is a fascinating window into the mindset of America’s spies as they identify future threats to the U.S. and lay out the actions the U.S. intelligence community should take in response. It anticipates a series of potential scenarios the U.S. may face in 2025, from a “China/Russia/India/Iran centered bloc [that] challenges U.S. supremacy” to a world in which “identity-based groups supplant nation-states,” and games out how the U.S. intelligence community should operate in those alternative futures—the idea being to assess “the most challenging issues [the U.S.] could face beyond the standard planning cycle.”

he report describes itself as “an essential long-term piece, looking out between 10 and 20 years” designed to enable ”the IC [to] best posture itself to meet the range of challenges it may face.” Whatever else is true, one thing is unmistakable: the report blithely acknowledges that stealing secrets to help American corporations secure competitive advantage is an acceptable future role for U.S. intelligence agencies. In May, the U.S. Justice Department indicted five Chinese government employees on charges that they spied on U.S. companies. At the time, Attorney General Eric Holder said the spying took place “for no reason other than to advantage state-owned companies and other interests in China,” and “this is a tactic that the U.S. government categorically denounces.” But the following day, The New York Times detailed numerous episodes of American economic spying that seemed quite similar. Harvard Law School professor and former Bush Justice Department official Jack Goldsmith wrote that the accusations in the indictment sound “a lot like the kind of cyber-snooping on firms that the United States does.” But U.S. officials continued to insist that using surveillance capabilities to bestow economic advantage for the benefit of a country’s corporations is wrong, immoral, and illegal.

Yet this 2009 report advocates doing exactly that in the event that ”that the technological capacity of foreign multinational corporations outstrip[s] that of U.S. corporations.” Using covert cyber operations to pilfer “proprietary information” and then determining how it ”would be useful to U.S. industry” is precisely what the U.S. government has been vehemently insisting it does not do, even though for years it has officially prepared to do precisely that.

A Columbia University computer sciences expert who heads one of the DNI-funded teams, Steven M. Bellovin, estimates the government could start conducting encrypted searches within the next year or two. "If the NSA wanted to deploy something like this it would take one to two years to get the hardware and software in place to start collecting data this way either from phone companies or whatever other entity they decide on," said Bellovin, who is also a former chief technologist for the Federal Trade Commission.

An encrypted search system would permit the NSA to shift storage of phone records to either phone providers or a third party, and conduct secure searches remotely through their databases. The coding could shield both the extracted metadata and identities of those conducting the searches, Bellovin said. The government could use encrypted searches to ensure its analysts were not leaking information or abusing anyone's privacy during their data searches. And the technique could also be used by the NSA to securely search out and retrieve Internet metadata, such as emails and other electronic records. Some computer science experts are less sanguine about the prospects for encrypted search techniques. Searches could bog down because of the encryption computations needed, said Daniel Weitzner, principal research scientist at MIT's Computer Science and Artificial Intelligence Laboratory and former deputy U.S. chief technology officer for the Obama administration. "There's no silver bullet that guarantees the intelligence community will only have access to the records they're supposed to have access to," Weitzner said. "We also need oversight of the actual use of the data."

The encrypted search techniques could make it more difficult for hackers to access the phone records and could prevent phone companies from knowing which records the government was searching. "It would remove one of the big objections to having the phone companies hold the data," Bellovin said. Similar research is underway by researchers at University of California at Irvine; a group from the University of Wisconsin-Madison and the University of Texas at Austin; another group from MIT, Yale and Rensselaer Polytechnic Institute; and a fourth from Stealth Software Technologies, a Los Angeles-based technology company.

Jameel Jaffer, the American Civil Liberties Union's deputy legal director, said in a statement today that: After Congress enacted the FISA Amendments Act in 2008, we worried that the NSA would use the new authority to conduct warrantless surveillance of Americans' telephone calls and emails. These documents confirm many of our worst fears. The "targeting" procedures indicate that the NSA is engaged in broad surveillance of Americans' international communications. The "minimization" procedures that supposedly protect Americans' constitutional rights turn out to be far weaker than we imagined they could be. For example, the NSA claims the authority to collect and disseminate attorney-client communications -- and even, in some circumstances, to turn them over to Justice Department prosecutors. The government also claims the authority to retain Americans' purely domestic communications in certain situations.

The documents suggest there are some significant loopholes in domestic surveillance: if an NSA analyst reviews an intercepted communication and finds "evidence of a crime that has been, is being, or is about to be committed," it can be forwarded to the FBI or other federal law enforcement agencies. Another loophole is "a serious harm to life or property" -- which could sweep in intellectual property -- and "enciphered" data. Communications that contain "enciphered" data, which would likely include PGP but also could mean encrypted Web connections using SSL, may be kept indefinitely. Earlier reports have indicated that the NSA has the ability to record nearly all domestic and international phone calls -- in case an analyst needed to access the recordings in the future. A Wired magazine article last year disclosed that the NSA has established "listening posts" that allow the agency to collect and sift through billions of phone calls through a massive new data center in Utah, "whether they originate within the country or overseas." That includes not just metadata, but also the contents of the communications.

Section 702 of the FAA says surveillance may be authorized by the attorney general and director of national intelligence without prior approval by the secret Foreign Intelligence Surveillance Court, as long as minimization requirements and general procedures blessed by the court are followed.

The court decision allowed the NSA “to query the vast majority” of its e-mail and phone call databases using the e-mail addresses and phone numbers of Americans and legal residents without a warrant, according to Bates’s opinion. The queries must be “reasonably likely to yield foreign intelligence information.” And the results are subject to the NSA’s privacy rules.

But in 2011, to more rapidly and effectively identify relevant foreign intelligence communications, “we did ask the court” to lift the ban, ODNI general counsel Robert S. Litt said in an interview. “We wanted to be able to do it,” he said, referring to the searching of Americans’ communications without a warrant.

The court’s expansion of authority went largely unnoticed when the opinion was released, but it formed the basis for cryptic warnings last year by a pair of Democratic senators, Ron Wyden (Ore.) and Mark Udall (Colo.), that the administration had a “back-door search loophole” that enabled the NSA to scour intercepted communications for those of Americans. They introduced legislation to require a warrant, but they were barred by classification rules from disclosing the court’s authorization or whether the NSA was already conducting such searches.

The [surveillance] Court documents declassified recently show that in late 2011 the court authorized the NSA to conduct warrantless searches of individual Americans’ communications using an authority intended to target only foreigners,” Wyden said in a statement to The Washington Post. “Our intelligence agencies need the authority to target the communications of foreigners, but for government agencies to deliberately read the e-mails or listen to the phone calls of individual Americans, the Constitution requires a warrant.”

Senior administration officials disagree. “If we’re validly targeting foreigners and we happen to collect communications of Americans, we don’t have to close our eyes to that,” Litt said. “I’m not aware of other situations where once we have lawfully collected information, we have to go back and get a warrant to look at the information we’ve already collected.” The searches take place under a surveillance program Congress authorized in 2008 under Section 702 of the Foreign Intelligence Surveillance Act. Under that law, the target must be a foreigner “reasonably believed” to be outside the United States, and the court must approve the targeting procedures in an order good for one year.

But — and this was the nub of the criticism — a warrant for each target would no longer be required. That means that communications with Americans could be picked up without a court first determining that there is probable cause that the people they were talking to were terrorists, spies or “foreign powers.”That is why it is important to require a warrant before searching for Americans’ data, Udall said. “Our founders laid out a roadmap where Americans’ privacy rights are protected before their communications are seized or searched — not after the fact,” he said in a statement to The Post.

The NSA intercepts more than 250 million Internet communications each year under Section 702. Ninety-one percent are from U.S. Internet companies such as Google and Yahoo. The rest come from “upstream” companies that route Internet traffic to, from and within the United States. The expanded search authority applies only to the downstream collection.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Even the cleverest lawyers cannot square with the Fourth Amendment many of the NSA activities that Clapper and Feinstein have defended, winked at, or lied about. Only you can get rid of James Clapper. We suspect that a certain awkwardness — and perhaps also a misguided sense of loyalty to a colleague — militate against your senior staff giving you an unvarnished critique of how badly you have been served by Clapper. And so we decided to give you a candid reminder from us former intelligence and national security officials with a total of hundreds of years of experience, much of it at senior levels, in the hope you will find it helpful. Statements by DNI Clapper re Eavesdropping on Americans

Mr. President, are you not also troubled by those misleading statements? We strongly believe you must fire Jim Clapper for his lies to the Congress and the American people and that you must appoint someone who will tell the truth. * * * For the Steering Group, Veteran Intelligence Professionals for Sanity