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The United Nations’ top official for counter-terrorism and human rights (known as the “Special Rapporteur”) issued a formal report to the U.N. General Assembly today that condemns mass electronic surveillance as a clear violation of core privacy rights guaranteed by multiple treaties and conventions. “The hard truth is that the use of mass surveillance technology effectively does away with the right to privacy of communications on the Internet altogether,” the report concluded. Central to the Rapporteur’s findings is the distinction between “targeted surveillance” — which “depend[s] upon the existence of prior suspicion of the targeted individual or organization” — and “mass surveillance,” whereby “states with high levels of Internet penetration can [] gain access to the telephone and e-mail content of an effectively unlimited number of users and maintain an overview of Internet activity associated with particular websites.” In a system of “mass surveillance,” the report explained, “all of this is possible without any prior suspicion related to a specific individual or organization. The communications of literally every Internet user are potentially open for inspection by intelligence and law enforcement agencies in the States concerned.”

Mass surveillance thus “amounts to a systematic interference with the right to respect for the privacy of communications,” it declared. As a result, “it is incompatible with existing concepts of privacy for States to collect all communications or metadata all the time indiscriminately.” In concluding that mass surveillance impinges core privacy rights, the report was primarily focused on the International Covenant on Civil and Political Rights, a treaty enacted by the General Assembly in 1966, to which all of the members of the “Five Eyes” alliance are signatories. The U.S. ratified the treaty in 1992, albeit with various reservations that allowed for the continuation of the death penalty and which rendered its domestic law supreme. With the exception of the U.S.’s Persian Gulf allies (Saudi Arabia, UAE and Qatar), virtually every major country has signed the treaty. Article 17 of the Covenant guarantees the right of privacy, the defining protection of which, the report explained, is “that individuals have the right to share information and ideas with one another without interference by the State, secure in the knowledge that their communication will reach and be read by the intended recipients alone.”

The report’s key conclusion is that this core right is impinged by mass surveillance programs: “Bulk access technology is indiscriminately corrosive of online privacy and impinges on the very essence of the right guaranteed by article 17. In the absence of a formal derogation from States’ obligations under the Covenant, these programs pose a direct and ongoing challenge to an established norm of international law.” The report recognized that protecting citizens from terrorism attacks is a vital duty of every state, and that the right of privacy is not absolute, as it can be compromised when doing so is “necessary” to serve “compelling” purposes. It noted: “There may be a compelling counter-terrorism justification for the radical re-evaluation of Internet privacy rights that these practices necessitate. ” But the report was adamant that no such justifications have ever been demonstrated by any member state using mass surveillance: “The States engaging in mass surveillance have so far failed to provide a detailed and evidence-based public justification for its necessity, and almost no States have enacted explicit domestic legislation to authorize its use.”

In August 2013, as evidence emerged of the active participation by New Zealand in the “Five Eyes” mass surveillance program exposed by Edward Snowden, the country’s conservative Prime Minister, John Key, vehemently denied that his government engages in such spying. He went beyond mere denials, expressly vowing to resign if it were ever proven that his government engages in mass surveillance of New Zealanders. He issued that denial, and the accompanying resignation vow, in order to reassure the country over fears provoked by a new bill he advocated to increase the surveillance powers of that country’s spying agency, Government Communications Security Bureau (GCSB) — a bill that passed by one vote thanks to the Prime Minister’s guarantees that the new law would not permit mass surveillance.

Since then, a mountain of evidence has been presented that indisputably proves that New Zealand does exactly that which Prime Minister Key vehemently denied — exactly that which he said he would resign if it were proven was done. Last September, we reported on a secret program of mass surveillance at least partially implemented by the Key government that was designed to exploit the very law that Key was publicly insisting did not permit mass surveillance. At the time, Snowden, citing that report as well as his own personal knowledge of GCSB’s participation in the mass surveillance tool XKEYSCORE, wrote in an article for The Intercept: Let me be clear: any statement that mass surveillance is not performed in New Zealand, or that the internet communications are not comprehensively intercepted and monitored, or that this is not intentionally and actively abetted by the GCSB, is categorically false. . . . The prime minister’s claim to the public, that “there is no and there never has been any mass surveillance” is false. The GCSB, whose operations he is responsible for, is directly involved in the untargeted, bulk interception and algorithmic analysis of private communications sent via internet, satellite, radio, and phone networks.

A series of new reports last week by New Zealand journalist Nicky Hager, working with my Intercept colleague Ryan Gallagher, has added substantial proof demonstrating GCSB’s widespread use of mass surveillance. An article last week in The New Zealand Herald demonstrated that “New Zealand’s electronic surveillance agency, the GCSB, has dramatically expanded its spying operations during the years of John Key’s National Government and is automatically funnelling vast amounts of intelligence to the US National Security Agency.” Specifically, its “intelligence base at Waihopai has moved to ‘full-take collection,’ indiscriminately intercepting Asia-Pacific communications and providing them en masse to the NSA through the controversial NSA intelligence system XKeyscore, which is used to monitor emails and internet browsing habits.” Moreover, the documents “reveal that most of the targets are not security threats to New Zealand, as has been suggested by the Government,” but “instead, the GCSB directs its spying against a surprising array of New Zealand’s friends, trading partners and close Pacific neighbours.” A second report late last week published jointly by Hager and The Intercept detailed the role played by GCSB’s Waihopai base in aiding NSA’s mass surveillance activities in the Pacific (as Hager was working with The Intercept on these stories, his house was raided by New Zealand police for 10 hours, ostensibly to find Hager’s source for a story he published that was politically damaging to Key).

But a recognition of these elementary truths does not make the employment by Government of electronic surveillance a welcome development—even when employed with restraint and under judicial supervision. There is, understandably, a deep-seated uneasiness and apprehension that this capability will be used to intrude upon cherished privacy of law-abiding citizens.[13] We 313*313 look to the Bill of Rights to safeguard this privacy. Though physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed, its broader spirit now shields private speech from unreasonable surveillance. Katz v. United States, supra; Berger v. New York, supra; Silverman v. United States, 365 U. S. 505 (1961). Our decision in Katz refused to lock the Fourth Amendment into instances of actual physical trespass. Rather, the Amendment governs "not only the seizure of tangible items, but extends as well to the recording of oral statements . . . without any `technical trespass under . . . local property law.'" Katz, supra, at 353. That decision implicitly recognized that the broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails[14] necessitate the application of Fourth Amendment safeguards.

National security cases, moreover, often reflect a convergence of First and Fourth Amendment values not present in cases of "ordinary" crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech. "Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure 314*314 power," Marcus v. Search Warrant, 367 U. S. 717, 724 (1961). History abundantly documents the tendency of Government—however benevolent and benign its motives —to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect "domestic security." Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. Senator Hart addressed this dilemma in the floor debate on § 2511 (3):

"As I read it—and this is my fear—we are saying that the President, on his motion, could declare— name your favorite poison—draft dodgers, Black Muslims, the Ku Klux Klan, or civil rights activists to be a clear and present danger to the structure or existence of the Government."[15] The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.

The Obama administration's international surveillance crisis deepened on Monday as representatives from a Latin American human rights panel told US diplomats that oversight of the programs was "illusory".Members of the Inter-American Commission on Human Rights, an arm of the Organization of American States, expressed frustration and dissatisfaction with the National Security Agency's mass surveillance of foreign nationals – something the agency argues is both central to its existence and necessary to prevent terrorism. "With a program of this scope, it's obvious that any form of control becomes illusory when there's hundreds of millions of communications that become monitored and surveilled," said Felipe Gonzales, a commissioner and Chilean national."This is of concern to us because maybe the Inter-American Committee on Human Rights may become a target as well of surveillance," said Rodrigo Escobar Gil, a commissioner and Colombian citizen.

Frank La Rue, the United Nations special rapporteur on the right to freedom of opinion and expression, told the commission that the right to privacy was "inextricably linked" to free expression. "What is not permissible from a human rights point of view is that those that hold political power or those that are in security agencies or, even less, those in intelligence agencies decide by themselves, for themselves, what the scope of these surveillance activities are, or who will be targeted, or who will be blank surveilled," La Rue said.While the US sent four representatives to the hearing, they offered no defence, rebuttal or elaboration about bulk surveillance, saying the October government shutdown prevented them from adequate preparation. "We are here to listen," said deputy permanent representative Lawrence Gumbiner, who pledged to submit written responses within 30 days.All 35 North, Central and South American nations are members of the commission. La Rue, originally from Guatemala and an independent expert appointed by the Human Rights Council, travels the world reporting on human rights concerns – often in countries with poor democratic standards.

The Obama administration has been fielding a week's worth of European outrage following media reports that the NSA had collected a similarly large volume of phone calls from France – which director of national intelligence James Clapper, who recently apologised for misleading the Senate about domestic spying, called "false" – and spying on German chancellor Angela Merkel's own cellphone, which US officials have effectively confessed to. Brazil and Mexico are also demanding answers from US intelligence officials, following reports about intrusive acts of espionage in their territory revealed by documents provided to journalists by former NSA contractor Edward Snowden. The White House has said it will provide some answers after the completion of an external review of its surveillance programs, scheduled to be completed before the end of the year. The Guardian reported on Thursday that the NSA has intercepted the communications of 35 world leaders.

In a seminal decision updating and consolidating its previous jurisprudence on surveillance, the Grand Chamber of the European Court of Human Rights took a sideways swing at mass surveillance programs last week, reiterating the centrality of “reasonable suspicion” to the authorization process and the need to ensure interception warrants are targeted to an individual or premises. The decision in Zakharov v. Russia — coming on the heels of the European Court of Justice’s strongly-worded condemnation in Schrems of interception systems that provide States with “generalised access” to the content of communications — is another blow to governments across Europe and the United States that continue to argue for the legitimacy and lawfulness of bulk collection programs. It also provoked the ire of the Russian government, prompting an immediate legislative move to give the Russian constitution precedence over Strasbourg judgments. The Grand Chamber’s judgment in Zakharov is especially notable because its subject matter — the Russian SORM system of interception, which includes the installation of equipment on telecommunications networks that subsequently enables the State direct access to the communications transiting through those networks — is similar in many ways to the interception systems currently enjoying public and judicial scrutiny in the United States, France, and the United Kingdom. Zakharov also provides a timely opportunity to compare the differences between UK and Russian law: Namely, Russian law requires prior independent authorization of interception measures, whereas neither the proposed UK law nor the existing legislative framework do.

The decision is lengthy and comprises a useful restatement and harmonization of the Court’s approach to standing (which it calls “victim status”) in surveillance cases, which is markedly different from that taken by the US Supreme Court. (Indeed, Judge Dedov’s separate but concurring opinion notes the contrast with Clapper v. Amnesty International.) It also addresses at length issues of supervision and oversight, as well as the role played by notification in ensuring the effectiveness of remedies. (Marko Milanovic discusses many of these issues here.) For the purpose of the ongoing debate around the legitimacy of bulk surveillance regimes under international human rights law, however, three particular conclusions of the Court are critical.

The Court took issue with legislation permitting the interception of communications for broad national, military, or economic security purposes (as well as for “ecological security” in the Russian case), absent any indication of the particular circumstances under which an individual’s communications may be intercepted. It said that such broadly worded statutes confer an “almost unlimited degree of discretion in determining which events or acts constitute such a threat and whether that threat is serious enough to justify secret surveillance” (para. 248). Such discretion cannot be unbounded. It can be limited through the requirement for prior judicial authorization of interception measures (para. 249). Non-judicial authorities may also be competent to authorize interception, provided they are sufficiently independent from the executive (para. 258). What is important, the Court said, is that the entity authorizing interception must be “capable of verifying the existence of a reasonable suspicion against the person concerned, in particular, whether there are factual indications for suspecting that person of planning, committing or having committed criminal acts or other acts that may give rise to secret surveillance measures, such as, for example, acts endangering national security” (para. 260). This finding clearly constitutes a significant threshold which a number of existing and pending European surveillance laws would not meet. For example, the existence of individualized reasonable suspicion runs contrary to the premise of signals intelligence programs where communications are intercepted in bulk; by definition, those programs collect information without any consideration of individualized suspicion. Yet the Court was clearly articulating the principle with national security-driven surveillance in mind, and with the knowledge that interception of communications in Russia is conducted by Russian intelligence on behalf of law enforcement agencies.

WASHINGTON -- The National Security Agency has been gathering records of online sexual activity and evidence of visits to pornographic websites as part of a proposed plan to harm the reputations of those whom the agency believes are radicalizing others through incendiary speeches, according to a top-secret NSA document. The document, provided by NSA whistleblower Edward Snowden, identifies six targets, all Muslims, as “exemplars” of how “personal vulnerabilities” can be learned through electronic surveillance, and then exploited to undermine a target's credibility, reputation and authority. The NSA document, dated Oct. 3, 2012, repeatedly refers to the power of charges of hypocrisy to undermine such a messenger. “A previous SIGINT" -- or signals intelligence, the interception of communications -- "assessment report on radicalization indicated that radicalizers appear to be particularly vulnerable in the area of authority when their private and public behaviors are not consistent,” the document argues. Among the vulnerabilities listed by the NSA that can be effectively exploited are “viewing sexually explicit material online” and “using sexually explicit persuasive language when communicating with inexperienced young girls.”

The Director of the National Security Agency -- described as "DIRNSA" -- is listed as the "originator" of the document. Beyond the NSA itself, the listed recipients include officials with the Departments of Justice and Commerce and the Drug Enforcement Administration. "Without discussing specific individuals, it should not be surprising that the US Government uses all of the lawful tools at our disposal to impede the efforts of valid terrorist targets who seek to harm the nation and radicalize others to violence," Shawn Turner, director of public affairs for National Intelligence, told The Huffington Post in an email Tuesday. Yet Jameel Jaffer, deputy legal director of the American Civil Liberties Union, said these revelations give rise to serious concerns about abuse. "It's important to remember that the NSA’s surveillance activities are anything but narrowly focused -- the agency is collecting massive amounts of sensitive information about virtually everyone," he said. "Wherever you are, the NSA's databases store information about your political views, your medical history, your intimate relationships and your activities online," he added. "The NSA says this personal information won't be abused, but these documents show that the NSA probably defines 'abuse' very narrowly."

None of the six individuals targeted by the NSA is accused in the document of being involved in terror plots. The agency believes they all currently reside outside the United States. It identifies one of them, however, as a "U.S. person," which means he is either a U.S. citizen or a permanent resident. A U.S. person is entitled to greater legal protections against NSA surveillance than foreigners are. Stewart Baker, a one-time general counsel for the NSA and a top Homeland Security official in the Bush administration, said that the idea of using potentially embarrassing information to undermine targets is a sound one. "If people are engaged in trying to recruit folks to kill Americans and we can discredit them, we ought to," said Baker. "On the whole, it's fairer and maybe more humane" than bombing a target, he said, describing the tactic as "dropping the truth on them." Any system can be abused, Baker allowed, but he said fears of the policy drifting to domestic political opponents don't justify rejecting it. "On that ground you could question almost any tactic we use in a war, and at some point you have to say we're counting on our officials to know the difference," he said.

Over the last seven months, we have learned an incredible amount about the government's post-9/11 surveillance efforts. But there is a crucial gap in our basic understanding. We now know, for example, a good deal about how the government conducts surveillance that targets Americans, and about surveillance of foreigners that sweeps up Americans' international communications when the actual surveillance takes place on U.S. soil (for example, from a Google facility in the United States). But we still know very little about Executive Order 12,333, which governs the NSA's surveillance abroad — even when that surveillance sweeps up Americans' communications. To fill that gap, the ACLU, along with the Media Freedom and Information Access Clinic at Yale Law School, today filed a Freedom of Information Act lawsuit demanding that the government release basic information about its use of Executive Order 12,333 to conduct surveillance of Americans' international communications. Why is Executive Order 12,333 so important? Here is how we explained it in our complaint (filed today in federal court in New York):

Although EO 12,333 permits the government to target foreigners abroad for surveillance, recent revelations have confirmed that the government interprets that authority to permit sweeping monitoring of Americans' international communications. How the government conducts this surveillance, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance, are matters of great public significance and concern. While the government has released several documents describing the rules that govern its collection and use of Americans' international communications under statutory authorities regulating surveillance on U.S. soil, little information is publicly available regarding the rules that apply to surveillance of Americans' international calls and emails under EO 12,333. That gap in public knowledge is particularly troubling in light of recent revelations, which make clear that the NSA is collecting vast quantities of data worldwide pursuant to EO 12,333. For instance, recent news reports indicate that, relying on the executive order, the NSA is collecting: nearly 5 billion records per day on the location of cell phones, including Americans' cell phones; hundreds of millions of contact lists or address books from personal email and instant messaging accounts; and information from Google and Yahoo user accounts as that information travels between those companies' data centers located abroad.

The core of the problem is that the NSA has, for years, relied upon its authority to gather foreign intelligence as permission to conduct sweeping surveillance of Americans' international communications. We know that this happens under the laws that govern surveillance on U.S. soil, and recent revelations confirm that it happens — perhaps to an even greater extent — in the surveillance that takes place abroad under Executive Order 12,333. Moreover, the rules that govern surveillance under the executive order are of particular concern because that surveillance is not meaningfully overseen by Congress, and it is not overseen at all by the Foreign Intelligence Surveillance Court. In other words, the executive is conducting surveillance under its own executive order without any real oversight. We now know too well that unchecked surveillance authority can lead to dangerous overreach. That's why we are fighting for the release of documents that would shed light on the internal rules that the executive has set for itself when it monitors international communications abroad — including Americans' international communications.

“On 57 monitors that cover the walls of the center, operators zoomed and panned an array of roughly 200 police cameras perched across the city. They could dial up 800 more feeds from the city’s schools and traffic cameras, and they soon hope to add 400 more streams from cameras worn on officers’ bodies and from thousands from local businesses that have surveillance systems.” Though the intricate surveillance apparatus described above seems straight from a dystopic novel, it is actually the Washington Post’s recent description of the the visual data collection system employed by a local California police department. The police department in Fresno, California, has taken extreme measures to combat high rates of crime in the city. As the Post reports, Fresno’s Real Time Crime Center, buried deep in the police station’s headquarters, has developed as a response to what many police call increasing threats. The system, according to police officials, can “provide critical information that can help uncover terrorists or thwart mass shootings, ensure the safety of officers and the public, find suspects, and crack open cases” — a feature they say is increasingly important in the wake of events like the November terror attack in Paris and the San Bernardino shooting last month.

“Our officers are expected to know the unknown and see the unseen,” Fresno Chief of Police Jerry Dyer said. “They are making split-second decisions based on limited facts. The more you can provide in terms of intelligence and video, the more safely you can respond to calls.” Programs similar to the Real Time Crime Center have launched in New York, Houston, and Seattle over the course of the last decade. Nationwide, the use of Stingrays, data fusion centers, and aerial drone surveillance have broadened the access local police have to private information. In another example, the FBI is continually developing a comprehensive biometric database that local police access every day. “This is something that’s been building since September 11,” says Jennifer Lynch, a senior attorney at the Electronic Frontier Foundation. Like the problem of police militarization, Lynch traces the trend back to the Pentagon: “First funding went to the military to develop this technology, and now it has come back to domestic law enforcement. It’s the perfect storm of cheaper and easier-to-use technologies and money from state and federal governments to purchase it.”

While many of these programs may fail to shock Americans, one new software program takes police scrutiny of private citizens to a new level. Beware, a software tool produced by tech firm Intrado, not only surveils the data of the citizens of Fresno, the first city to test it — it calculates threat levels based on what it discovers. The software scours arrest records, property records, Deep Web searches, commercial databases, and social media postings. By this method, it was able to designate a man with a firearm and gang convictions involved in a real-time domestic violence dispute as the highest of three threat levels: a bright red ranking. Fresno police say the intelligence from Beware aided them, as the man eventually surrendered and officers found he was armed with a gun. Beware scours billions of data points to develop rankings for citizens, and though few recoil at the thought of catching criminals and miscreants, the program provides particular cause for concern because of both its invasiveness and its fallibility.

We all know justice is blind. But that is supposed to mean that everyone before it is treated equally, not that the justice system must close its eyes and refuse to look at important legal issues facing Americans.  Yet the government continues to convince courts that they cannot consider the constitutionality of its behavior in national security cases and, last week, in an important case for anyone who has ever used Wikipedia, another judge agreed with that position.  A federal district judge in Maryland dismissed Wikimedia v. NSA, a case challenging the legality of the NSA’s “upstream” surveillance—mass surveillance of Internet communications as they flow through the Internet backbone. The case was brought by our friends at the ACLU on behalf of nine plaintiffs, including human rights organizations, members of the media, and the Wikimedia Foundation.1 We filed a brief in the case, too, in support of Wikimedia and the other plaintiffs. The judge dismissed the case based on a legal principle called standing. Standing is supposed to ensure, among other things, that the party bringing the lawsuit has suffered a concrete harm, caused by the party being sued, and that the court can resolve the harm with a favorable ruling.

But the U.S. government has taken this doctrine, which was intended to limit the cases federal courts hear to actual live controversies, and turned it into a perverse shell game in surveillance cases—essentially arguing that because aspects of the surveillance program are secret, plaintiffs cannot prove that their communications were actually, in fact, intercepted and surveilled. And without that proof, the government argues, there’s no standing, because plaintiffs can’t show that they’ve suffered harm. Sadly, like several other courts before it, the judge agreed to this shell game and decided that it couldn’t decide whether the constitutional rights of Wikimedia and the other plaintiffs were violated.  This game is mighty familiar to us at EFF, but that doesn’t make it any less troubling. In our system, the courts have a fundamental obligation to conclusively determine the legality of government action that affects individuals’ constitutional rights. For years now, plaintiffs have tried to get the courts to simply issue a ruling on the merits of NSA surveillance programs. And for years, the government has successfully persuaded the courts to rely on standing and related doctrines to avoid doing so. That is essentially what happened here. The court labeled as “speculative” Wikimedia’s claim that, at a minimum, even one of its approximately one trillion Internet communications had been swept up in the NSA’s upstream surveillance program. Remember, this is a program that, by the government’s own admission, involves the searching and scanning of vast amounts of Internet traffic at key Internet junctures on the Internet’s backbone. Yet in court’s view, Wikimedia’s allegations describing upstream—based on concrete facts, taken from government documents— coupled with a plaintiff that engages in a large volume of internet communications were not enough to state a “plausible” claim that Wikimedia had been surveilled.

On the way to reaching that conclusion, and putting on its blindfold, the court made a number of mistakes. The Government’s Automated Eyes Are Still Government Eyes First, it appears the court fundamentally misunderstood Wikimedia’s claim about upstream surveillance and, in particular, “about surveillance.” As Wikimedia alleged, “about surveillance” (a specific aspect of upstream surveillance that searches the content of communications for references to particular email addresses or other identifiers) amounts to “the digital analogue of having a government agent open every piece of mail that comes through the post to determine whether it mentions a particular word or phrase.” The court held, however, that this type of “about” surveillance was “targeted insofar as it makes use of only those communications that contain information matching the tasked selectors,” like email addresses. But what the government "makes use of" is entirely beside the point—it is the scanning of the communications for the tasked selectors in the first place that is the problem.  To put it into a different context, the government conducts a search when it enters into your house and starts rifling through your files—not just when it finds something it wants to keep. The government's ultimate decision to “make use of” the communications it finds interesting is irrelevant. It is the search of the communications that matters.

For more than six months, Edward Snowden’s revelations about the National Security Agency (NSA) have been pouring out from the Washington Post, the New York Times, the Guardian, Germany’s Der Spiegel, and Brazil’s O Globo, among other places.  Yet no one has pointed out the combination of factors that made the NSA’s expanding programs to monitor the world seem like such a slam-dunk development in Washington.  The answer is remarkably simple.  For an imperial power losing its economic grip on the planet and heading into more austere times, the NSA’s latest technological breakthroughs look like a bargain basement deal when it comes to projecting power and keeping subordinate allies in line -- like, in fact, the steal of the century.  Even when disaster turned out to be attached to them, the NSA’s surveillance programs have come with such a discounted price tag that no Washington elite was going to reject them.

What exactly was the aim of such an unprecedented program of massive domestic and planetary spying, which clearly carried the risk of controversy at home and abroad? Here, an awareness of the more than century-long history of U.S. surveillance can guide us through the billions of bytes swept up by the NSA to the strategic significance of such a program for the planet’s last superpower. What the past reveals is a long-term relationship between American state surveillance and political scandal that helps illuminate the unacknowledged reason why the NSA monitors America’s closest allies. Not only does such surveillance help gain intelligence advantageous to U.S. diplomacy, trade relations, and war-making, but it also scoops up intimate information that can provide leverage -- akin to blackmail -- in sensitive global dealings and negotiations of every sort. The NSA’s global panopticon thus fulfills an ancient dream of empire. With a few computer key strokes, the agency has solved the problem that has bedeviled world powers since at least the time of Caesar Augustus: how to control unruly local leaders, who are the foundation for imperial rule, by ferreting out crucial, often scurrilous, information to make them more malleable.

Once upon a time, such surveillance was both expensive and labor intensive. Today, however, unlike the U.S. Army’s shoe-leather surveillance during World War I or the FBI’s break-ins and phone bugs in the Cold War years, the NSA can monitor the entire world and its leaders with only 100-plus probes into the Internet’s fiber optic cables. This new technology is both omniscient and omnipresent beyond anything those lacking top-secret clearance could have imagined before the Edward Snowden revelations began.  Not only is it unimaginably pervasive, but NSA surveillance is also a particularly cost-effective strategy compared to just about any other form of global power projection. And better yet, it fulfills the greatest imperial dream of all: to be omniscient not just for a few islands, as in the Philippines a century ago, or a couple of countries, as in the Cold War era, but on a truly global scale. In a time of increasing imperial austerity and exceptional technological capability, everything about the NSA’s surveillance told Washington to just “go for it.”  This cut-rate mechanism for both projecting force and preserving U.S. global power surely looked like a no-brainer, a must-have bargain for any American president in the twenty-first century -- before new NSA documents started hitting front pages weekly, thanks to Snowden, and the whole world began returning the favor.

Just as the Bush administration and the U.S. media re-labelled “torture” with the Orwellian euphemism “enhanced interrogation techniques” to make it more palatable, the governments and media of the Five Eyes surveillance alliance are now attempting to re-brand “mass surveillance” as “bulk collection” in order to make it less menacing (and less illegal). In the past several weeks, this is the clearly coordinated theme that has arisen in the U.S., UK, Canada, Australia and New Zealand as the last defense against the Snowden revelations, as those governments seek to further enhance their surveillance and detention powers under the guise of terrorism.

This manipulative language distortion can be seen perfectly in yesterday’s white-washing report of GCHQ mass surveillance from the servile rubber-stamp calling itself “The Intelligence and Security Committee of the UK Parliament (ISC)”(see this great Guardian Editorial this morning on what a “slumbering” joke that “oversight” body is). As Committee Member MP Hazel Blears explained yesterday (photo above), the Parliamentary Committee officially invoked this euphemism to justify the collection of billions of electronic communications events every day. The Committee actually acknowledged for the first time (which Snowden documents long ago proved) that GCHQ maintains what it calls “Bulk Personal Datasets” that contain “millions of records,” and even said about pro-privacy witnesses who testified before it: “we recognise their concerns as to the intrusive nature of bulk collection.” That is the very definition of “mass surveillance,” yet the Committee simply re-labelled it “bulk collection,” purported to distinguish it from “mass surveillance,” and thus insist that it was all perfectly legal.

This re-definition game goes as follows: yes, we vacuum up and store literally as much of the internet as we possibly can. Then we analyze all the data about what you’re doing, with whom you’re speaking, and who your network of associates is. Based on that analysis of all of you and your activities, we then read the communications that we want (with virtually no checks and concealing from you what percentage of it we’re reading), and store as much of the rest of it as technology permits for future trolling. But don’t worry: we’re only reading the Bad People’s emails. So run along then: no mass surveillance here. Just bulk collection! It’s not mass surveillance, but “enhanced collection techniques.”  One of the many facts that made the re-defining of “torture” so corrupt and indisputably invalid was that there was long-standing law making clear that exactly these interrogation techniques used by the U.S. government were torture and thus illegal. The same is true of this obscene attempt to re-define “mass surveillance” as nothing more than mere innocent “bulk collection.”

John Kerry, the US secretary of state, conceded on Thursday that some of the country's surveillance activities had gone too far, saying that certain practices had occurred "on autopilot" without the knowledge of senior officials in the Obama administration.In the most stark comments yet by a senior administration official, Kerry promised that a previously announced review of surveillance practices would be thorough and that some activities would end altogether."The president and I have learned of some things that have been happening in many ways on an automatic pilot, because the technology is there and the ability is there," he told a conference in London via video link."In some cases, some of these actions have reached too far and we are going to try to make sure it doesn't happen in the future."

In recent days, the Obama administration has put some distance between it and the National Security Agency (NSA). Kerry's comments are a reflection in particular of a concern about the diplomatic fallout from the revelation that the US monitored the cellphone of the German chancellor, Angela Merkel.The tactic has irritated senior intelligence officials. On Thursday evening, the director of the NSA, General Keith Alexander, blamed US diplomats for requests to place foreign leaders under surveillance.During a pointed exchange with a former US ambassador to Romania, James Carew Rosapepe, Alexander said: "We, the intelligence agencies, don't come up with the requirements. The policy-makers come up with the requirements."He added: "One of those groups would have been, let me think, hold on, oh: ambassadors."

Alexander said that the NSA collected information when it was asked by policy officials to discover the "leadership intentions" of foreign countries. "If you want to know leadership intentions, these are the issues," he said at a discussion hosted by the Baltimore Council on Foreign Relations.Earlier in Washington, the debate continued about whether further legal constraints should be placed on the NSA. The Senate intelligence committee approved a bill that placed largely cosmetic restrictions on the National Security Agency's domestic surveillance programme.The bill, sponsored by committee chairwoman Dianne Feinstein, a California Democrat, allows the NSA continue to collect phone metadata of millions of Americans for renewable 90-day periods, but orders it to be more transparent about the practice.

Ben Wizner, who is perhaps best known as Edward Snowden’s lawyer, directs the American Civil Liberties Union’s Speech, Privacy & Technology Project. Wizner, who joined the ACLU in August 2001, one month before the 9/11 attacks, has been a force in the legal battles against torture, watch lists, and extraordinary rendition since the beginning of the global “war on terror.” Ad Policy On October 15, we met with Wizner in an upstate New York pub to discuss the state of privacy advocacy today. In sometimes sardonic tones, he talked about the transition from litigating on issues of torture to privacy advocacy, differences between corporate and state-sponsored surveillance, recent developments in state legislatures and the federal government, and some of the obstacles impeding civil liberties litigation. The interview has been edited and abridged for publication.

en Wizner, who is perhaps best known as Edward Snowden’s lawyer, directs the American Civil Liberties Union’s Speech, Privacy & Technology Project. Wizner, who joined the ACLU in August 2001, one month before the 9/11 attacks, has been a force in the legal battles against torture, watch lists, and extraordinary rendition since the beginning of the global “war on terror.” Ad Policy On October 15, we met with Wizner in an upstate New York pub to discuss the state of privacy advocacy today. In sometimes sardonic tones, he talked about the transition from litigating on issues of torture to privacy advocacy, differences between corporate and state-sponsored surveillance, recent developments in state legislatures and the federal government, and some of the obstacles impeding civil liberties litigation. The interview has been edited and abridged for publication.

Many of the technologies, both military technologies and surveillance technologies, that are developed for purposes of policing the empire find their way back home and get repurposed. You saw this in Ferguson, where we had military equipment in the streets to police nonviolent civil unrest, and we’re seeing this with surveillance technologies, where things that are deployed for use in war zones are now commonly in the arsenals of local police departments. For example, a cellphone surveillance tool that we call the StingRay—which mimics a cellphone tower and communicates with all the phones around—was really developed as a military technology to help identify targets. Now, because it’s so inexpensive, and because there is a surplus of these things that are being developed, it ends up getting pushed down into local communities without local democratic consent or control.

Recent revelations about the extent of surveillance by the U.S. National Security Agency come as no surprise to those with a technical background in the workings of digital communications. The leaked documents show how the NSA has taken advantage of the increased use of digital communications and cloud services, coupled with outdated privacy laws, to expand and streamline their surveillance programs. This is a predictable response to the shrinking cost and growing efficiency of surveillance brought about by new technology. The extent to which technology has reduced the time and cost necessary to conduct surveillance should play an important role in our national discussion of this issue.

What we have learned about the NSA’s capabilities suggests a move toward programmatic, automated surveillance previously unfathomable due to limitations of computing speed, scale, and cost. Technical advances have both reduced the barriers to surveillance and increased the NSA’s capacity for it. We need to remember that this is a trend with a firm lower bound. Once the cost of surveillance reaches zero we will be left with our outdated laws as the only protection. Whatever policy actions are taken as a result of the recent leaks should address the fact that technical barriers such as cost and speed offer dwindling protection from unwarranted government surveillance domestically and abroad.

The American Civil Liberties Union (ACLU) has filed a motion to reveal the secret court opinions with “novel or significant interpretations” of surveillance law, in a renewed push for government transparency. The motion, filed Wednesday by the ACLU and Yale Law School’s Media Freedom and Information Access Clinic, asks the Foreign Intelligence Surveillance Act (FISA) Court, which rules on intelligence gathering activities in secret, to release 23 classified decisions it made between 9/11 and the passage of the USA Freedom Act in June 2015. As ACLU National Security Project staff attorney Patrick Toomey explains, the opinions are part of a “much larger collection of hidden rulings on all sorts of government surveillance activities that affect the privacy rights of Americans.” Among them is the court order that the government used to direct Yahoo to secretly scanits users’ emails for “a specific set of characters.” Toomey writes: These court rulings are essential for the public to understand how federal laws are being construed and implemented. They also show how constitutional protections for personal privacy and expressive activities are being enforced by the courts. In other words, access to these opinions is necessary for the public to properly oversee their government.

Although the USA Freedom Act requires the release of novel FISA court opinions on surveillance law, the government maintains that the rule does not apply retroactively—thereby protecting the panel from publishing many of its post-9/11 opinions, which helped create an “unprecedented buildup” of secret surveillance laws. Even after National Security Agency (NSA) whistleblower Edward Snowden revealed the scope of mass surveillance in 2013, sparking widespread outcry, dozens of rulings on spying operations remain hidden from the public eye, which stymies efforts to keep the government accountable, civil liberties advocates say. “These rulings are necessary to inform the public about the scope of the government’s surveillance powers today,” the ACLU’s motion states.

Toomey writes that the rulings helped influence a number of novel spying activities, including: The government’s use of malware, which it calls “Network Investigative Techniques” The government’s efforts to compel technology companies to weaken or circumvent their own encryption protocols The government’s efforts to compel technology companies to disclose their source code so that it can identify vulnerabilities The government’s use of “cybersignatures” to search through internet communications for evidence of computer intrusions The government’s use of stingray cell-phone tracking devices under the Foreign Intelligence Surveillance Act (FISA) The government’s warrantless surveillance of Americans under FISA Section 702—a controversial authority scheduled to expire in December 2017 The bulk collection of financial records by the CIA and FBI under Section 215 of the Patriot Act Without these rulings being made public, “it simply isn’t possible to understand the government’s claimed authority to conduct surveillance,” Toomey writes. As he told The Intercept on Wednesday, “The people of this country can’t hold the government accountable for its surveillance activities unless they know what our laws allow. These secret court opinions define the limits of the government’s spying powers. Their disclosure is essential for meaningful public oversight in our democracy.”

Canada’s electronic surveillance agency is covertly monitoring vast amounts of Canadians’ emails as part of a sweeping domestic cybersecurity operation, according to top-secret documents. The surveillance initiative, revealed Wednesday by CBC News in collaboration with The Intercept, is sifting through millions of emails sent to Canadian government agencies and departments, archiving details about them on a database for months or even years. The data mining operation is carried out by the Communications Security Establishment, or CSE, Canada’s equivalent of the National Security Agency. Its existence is disclosed in documents obtained by The Intercept from NSA whistleblower Edward Snowden. The emails are vacuumed up by the Canadian agency as part of its mandate to defend against hacking attacks and malware targeting government computers. It relies on a system codenamed PONY EXPRESS to analyze the messages in a bid to detect potential cyber threats.

Last year, CSE acknowledged it collected some private communications as part of cybersecurity efforts. But it refused to divulge the number of communications being stored or to explain for how long any intercepted messages would be retained. Now, the Snowden documents shine a light for the first time on the huge scope of the operation — exposing the controversial details the government withheld from the public. Under Canada’s criminal code, CSE is not allowed to eavesdrop on Canadians’ communications. But the agency can be granted special ministerial exemptions if its efforts are linked to protecting government infrastructure — a loophole that the Snowden documents show is being used to monitor the emails. The latest revelations will trigger concerns about how Canadians’ private correspondence with government employees are being archived by the spy agency and potentially shared with police or allied surveillance agencies overseas, such as the NSA. Members of the public routinely communicate with government employees when, for instance, filing tax returns, writing a letter to a member of parliament, applying for employment insurance benefits or submitting a passport application.

Chris Parsons, an internet security expert with the Toronto-based internet think tank Citizen Lab, told CBC News that “you should be able to communicate with your government without the fear that what you say … could come back to haunt you in unexpected ways.” Parsons said that there are legitimate cybersecurity purposes for the agency to keep tabs on communications with the government, but he added: “When we collect huge volumes, it’s not just used to track bad guys. It goes into data stores for years or months at a time and then it can be used at any point in the future.” In a top-secret CSE document on the security operation, dated from 2010, the agency says it “processes 400,000 emails per day” and admits that it is suffering from “information overload” because it is scooping up “too much data.” The document outlines how CSE built a system to handle a massive 400 terabytes of data from Internet networks each month — including Canadians’ emails — as part of the cyber operation. (A single terabyte of data can hold about a billion pages of text, or about 250,000 average-sized mp3 files.)

The United States and its key intelligence allies are quietly working behind the scenes to kneecap a mounting movement in the United Nations to promote a universal human right to online privacy, according to diplomatic sources and an internal American government document obtained by The Cable. The diplomatic battle is playing out in an obscure U.N. General Assembly committee that is considering a proposal by Brazil and Germany to place constraints on unchecked internet surveillance by the National Security Agency and other foreign intelligence services. American representatives have made it clear that they won't tolerate such checks on their global surveillance network. The stakes are high, particularly in Washington -- which is seeking to contain an international backlash against NSA spying -- and in Brasilia, where Brazilian President Dilma Roussef is personally involved in monitoring the U.N. negotiations.

The Brazilian and German initiative seeks to apply the right to privacy, which is enshrined in the International Covenant on Civil and Political Rights (ICCPR), to online communications. Their proposal, first revealed by The Cable, affirms a "right to privacy that is not to be subjected to arbitrary or unlawful interference with their privacy, family, home, or correspondence." It notes that while public safety may "justify the gathering and protection of certain sensitive information," nations "must ensure full compliance" with international human rights laws. A final version the text is scheduled to be presented to U.N. members on Wednesday evening and the resolution is expected to be adopted next week. A draft of the resolution, which was obtained by The Cable, calls on states to "to respect and protect the right to privacy," asserting that the "same rights that people have offline must also be protected online, including the right to privacy." It also requests the U.N. high commissioner for human rights, Navi Pillay, present the U.N. General Assembly next year with a report on the protection and promotion of the right to privacy, a provision that will ensure the issue remains on the front burner.

Publicly, U.S. representatives say they're open to an affirmation of privacy rights. "The United States takes very seriously our international legal obligations, including those under the International Covenant on Civil and Political Rights," Kurtis Cooper, a spokesman for the U.S. mission to the United Nations, said in an email. "We have been actively and constructively negotiating to ensure that the resolution promotes human rights and is consistent with those obligations." But privately, American diplomats are pushing hard to kill a provision of the Brazilian and German draft which states that "extraterritorial surveillance" and mass interception of communications, personal information, and metadata may constitute a violation of human rights. The United States and its allies, according to diplomats, outside observers, and documents, contend that the Covenant on Civil and Political Rights does not apply to foreign espionage.

HERE WAS A SIMPLE AIM at the heart of the top-secret program: Record the website browsing habits of “every visible user on the Internet.” Before long, billions of digital records about ordinary people’s online activities were being stored every day. Among them were details cataloging visits to porn, social media and news websites, search engines, chat forums, and blogs. The mass surveillance operation — code-named KARMA POLICE — was launched by British spies about seven years ago without any public debate or scrutiny. It was just one part of a giant global Internet spying apparatus built by the United Kingdom’s electronic eavesdropping agency, Government Communications Headquarters, or GCHQ. The revelations about the scope of the British agency’s surveillance are contained in documents obtained by The Intercept from National Security Agency whistleblower Edward Snowden. Previous reports based on the leaked files have exposed how GCHQ taps into Internet cables to monitor communications on a vast scale, but many details about what happens to the data after it has been vacuumed up have remained unclear.

Amid a renewed push from the U.K. government for more surveillance powers, more than two dozen documents being disclosed today by The Intercept reveal for the first time several major strands of GCHQ’s existing electronic eavesdropping capabilities.

The surveillance is underpinned by an opaque legal regime that has authorized GCHQ to sift through huge archives of metadata about the private phone calls, emails and Internet browsing logs of Brits, Americans, and any other citizens — all without a court order or judicial warrant

It is a rare thing to bring truth to bear on the most powerful and secretive arm of the state. Never before has the Investigatory Powers Tribunal – the British court tasked with reviewing complaints against the security services – ruled against the government. Not once have the spooks been taken to task for overstepping the lawful boundaries of their conduct. Not a single British spy has been held accountable for mass surveillance, unlawful spying or snooping on private emails and phone calls. Until today. Privacy International has spent the past 25 years fighting back against the ever-expanding British surveillance state. Together with our allies, we’ve resisted the snooper’s charter (multiple times), mandatory ID cards and the provision of passenger name records. Yet in June 2013 we were as shocked as everyone else to learn that GCHQ, in collaboration with the NSA, had acquired the capabilities to completely control, monitor, copy, read and analyse the world’s private communications. It was, until that point, unfathomable that the security services could have so audaciously stretched the boundaries of democratic legitimacy – and could have so severely violated the civil liberties and human rights of not only Britons, but of hundreds of millions of innocent people across the globe.

Thanks to Edward Snowden, we learned that GCHQ has access to emails and messages that the NSA siphons off directly and en masse from Google, Skype and Facebook. We discovered that the NSA collects 194m text messages and 5bn location records every day – and GCHQ can read them too. And, of course, we learned that GCHQ is operating a mass surveillance system that, combined with its access to the NSA’s own mass surveillance architecture, means it can read almost anyone’s communications, at any time, without judicial authorisation or any meaningful oversight. In July 2013, the Intelligence and Security Committee assured us that GCHQ access to NSA surveillance material, in particular through the Prism programme, was entirely lawful. Unsurprisingly, we did not find the reassurances of a body that has consistently and blindly backed the services that it is meant to scrutinise comforting.

That’s why we decided to take GCHQ to court. Alongside Liberty, Amnesty International and human rights organisations from around the world, we argued that mass surveillance is not an acceptable activity of a democratic government, and that the cosy dealings between GCHQ and the NSA, conducted under a veil of secrecy that was only lifted by a whistleblower’s bravery, had to be brought within public control and scrutiny. The evidence was overwhelming and the history of human rights law was in our favour, but the tribunal – which at that point had never before found that the surveillance activities of GCHQ broke the law – disagreed. Mass surveillance, it found in its decision of December 2014, was legitimate under British law. GCHQ’s access to NSA mass surveillance was also acceptable, it said, given that the government had disclosed details of its relationship with the US during the course of our case.

Another burst of sunlight permeated the National Security Agency's black box of domestic surveillance last week.According to the New York Times, the NSA is searching the content of virtually every email that comes into or goes out of the United States without a warrant. To accomplish this astonishing invasion of Americans' privacy, the NSA reportedly is making a copy of nearly every international email. It then searches that cloned data, keeping all of the emails containing certain keywords and deleting the rest – all in a matter of seconds.

The NSA appears to believe this general monitoring of our electronic communications is justified because the entire process takes, in one official's words, "a small number of seconds". Translation: the NSA thinks it can intercept and then read Americans' emails so long as the intrusion is swift, efficient and silent.That is not how the fourth amendment works.Whether the NSA inspects and retains these messages for years, or only searches through them once before moving on, the invasion of Americans' privacy is real and immediate. There is no "five-second rule" for fourth amendment violations: the US constitution does not excuse these bulk searches simply because they happen in the blink of an eye.The government claims that this program is authorized by a surveillance statute passed in 2008 that allows the government to target foreigners for surveillance. Although the government has frequently defended that law as a necessary tool in gathering foreign intelligence, the government has repeatedly misled the public about the extent to which the statute implicates Americans' communications.

There should no longer be any doubt: the US government has for years relied upon its authority to collect foreigners' communications as a useful cover for its sweeping surveillance of Americans' communications. The surveillance program revealed last week confirms that the interception of American communications under this law is neither "targeted" at foreigners (in any ordinary sense of that word) nor "inadvertent", as officials have repeatedly claimed.Last week's revelations are a disturbing harbinger of future surveillance. Two months ago, this newspaper reported that the US government has been forcing American telecommunications companies to turn over the call records of every one of their customers "on an ongoing daily basis", to allow the NSA to later search those records when it has a reason to do so. The government has since defended the program, in part on the theory that Americans' right to privacy is not implicated by the initial acquisition of their phone records, only by their later searching.That legal theory is extraordinarily dangerous because it would allow the NSA to acquire virtually all digital information today simply because it might possibly become relevant tomorrow. The surveillance program revealed by the New York Times report goes one step further still. No longer is the government simply collecting information now so that the data is available to search, should a reasonable suspicion arise at some point in the future; the NSA is searching everything now – in real time and without suspicion – merely on the chance that it finds something of interest.