Our Not-So-Secret Spying Program

by Benjamin Studebaker

If you’re in the United States and you haven’t been living under a rock, the big story right now is how the government has been secretly gathering information about your phone and internet activity! You have no privacy! The media has whipped up a hysteria–I’ve heard it openly referred to as a “secret phone-tapping program”. The trouble is, this version of the story is extremely misleading. The government has been open about this since the mid-2000’s. Information about it has been widely available, so much so that I can construct a timeline of how this program came about with relative ease.

Back in 2005, the New York Times reported that President Bush had secretly authorized the NSA to conduct what was popularly called “warrantless wiretapping”. NYT revealed that this program had been going on since 2002. The program monitored international phone calls and e-mails made  by American citizens for the purpose of attempting to figure out what phone numbers or e-mails might be linked to Al Qaeda. The Bush administration justified this action through the Patriot Act, signed in 2001, particularly Title II of that law, which expanded the government’s powers of surveillance, but still did not appear to permit the government to go without any judicial permission of any kind.

Here’s video footage of George W. Bush defending this program:


Bush accused the NYT of aiding the enemy by revealing classified information to them. He pointed to two participants in the 9/11 attacks who contacted members of Al Qaeda outside the United States, and claimed that this program would have successfully identified them and lead to their capture prior to 9/11.

In 2006, a class action lawsuit was filed against AT&T for providing phone records to the NSA. The lawsuit was dismissed because new legislation retroactively made it legal for the government to require phone companies to provide their phone records to it. What new legislation was this?

In 2007, Bush decided to expand the surveillance program. This was done very openly. Congress passed and Bush signed the Protect America Act. This explicitly removed the warrant requirement. It also authorized and even required the supposedly “secret” surveillance policies that are in the news right now. In August of 2007, Wired reported:

the law gives the Administration the power to order the nation’s communication service providers — which range from Gmail, AOL IM, Twitter, Skype, traditional phone companies, ISPs, internet backbone providers, Federal Express, and social networks — to create possibly permanent spying outposts for the federal government.

These outposts need only to have a “significant” purpose of spying on foreigners, would be nearly immune to challenge by lawsuit, and have no court supervision over their extent or implementation.

What’s more, the Protect America Act required the government to create this database within 6 months of its signing. This has been going on a long time, and lots of people have known about it.

The Supreme Court was offered the opportunity to rule on the constitutionality of all of the surveillance program via the AT&T case. It declined to hear the case in 2012. A second case is currently working through the court system once again attempting to challenge the legality of the surveillance program, Jewel v. NSAThis case was filed in 2008, dismissed in 2010, reinstated in 2011 by the court of appeals, and is currently pending before Jeffrey White of the US District Court for the Northern District of California.

In the meantime, Bush’s second term ended and Barack Obama took office. In 2009, the Obama administration took the side of the NSA in the Jewel/NSA case. The commentators in this video take an especially harsh view of the administration’s stance:


Now, in 2008, the Protect America Act itself expired, but was almost entirely replaced with the FISA Amendments Act of 2008, which extended most of the provisions of the law through until the end of 2012. Crucially, the government was given a loophole by which it could continue surveillance programs beyond that date. Here’s the relevant section that permits this:

Section 404(a)7(B) CONTINUATION OF EXISTING ORDERS- If the Attorney General and the Director of National Intelligence seek to replace an authorization made pursuant to section 105B of the Foreign Intelligence Surveillance Act of 1978, as added by section 2 of the Protect America Act of 2007 (Public Law 110-55; 121 Stat. 522), by filing a certification in accordance with subparagraph (A), that authorization, and any directives issued thereunder and any order related thereto, shall remain in effect, notwithstanding the expiration provided for in subsection (a) of such section 105B, until the Foreign Intelligence Surveillance Court (as such term is defined in section 701(b)(2) of the Foreign Intelligence Surveillance Act of 1978 (as so added)) issues an order with respect to that certification under section 702(i)(3) of such Act (as so added) at which time the provisions of that section and of section 702(i)(4) of such Act (as so added) shall apply.

Emphasis added.

The FISA Amendments Act of 2008 was challenged by the ACLU. This case did make it to the Supreme Court, which ruled in favor of the government, 5-4, in February 2013. Alito, Roberts, Scalia, Kennedy, and Thomas formed the majority; Breyer, Ginsberg, Sotomayor, and Kagan were the minority.

As you can see, this program has been in and out of the new for years. It was not secret–any person could have easily known about it.  There have been several noteworthy court cases, conducted entirely on the public record devoted to this issue. In summary, here’s what happened:

  • 2001–9/11 happened, Patriot Act passed.
  • 2002–Bush authorizes NSA “warrantless wiretapping”.
  • 2005–Classified wiretapping program made public by the NYT.
  • 2006–AT&T sued for providing phone records to the government.
  • 2007–Protect America Act vastly increases the scope of the surveillance program and protects telecoms from lawsuits.
  • 2008–Jewel v. NSA filed.
  • 2008–FISA Amendments Act of 2008 extends most of the PAA to continue through 2012, provides a loophole for further continuation afterwards. It is immediately legally challenged by the ACLU.
  • 2009–Obama administration declares support for surveillance program.
  • 2010–Jewel v. NSA thrown out.
  • 2011–Jewel v. NSA reinstated (its fate remains unknown).
  • 2012–Lawsuit against AT&T denied appeal by the Supreme Court.
  • 2013–ACLU lawsuit defeated 5-4 by the Supreme Court.
  • 2013–Media pretends the surveillance program is some kind of shocking secret they’ve just revealed.

A lot of Tea Party people are particularly upset about this story and view it as a scandal against Obama. The overwhelming majority of these people voted for Bush and expressed approval of the warrantless wiretapping program in the mid-2000’s. I remember having conversations with many people on the right, and they all agreed that we needed this program in order to fight terrorism. If it turns out the program is bigger than they thought it was, this is merely symptomatic of a failure on their part to pay attention. Obama and Bush are equally complicit, congressional republicans and congressional democrats both voted for this legislation, and if we are going to criticize the program, we must criticize both parties equally for their respective roles in it.

Now, is the program justifiable? I would argue it’s not, though not perhaps for the reasons that so inflame public opinion. As an invasion of privacy, this program, as currently operated, is rather mild. The government knows which computers and phones are talking to each other, but that’s about it. While they can check to see what is being said in e-mails, the sheer volume of e-mail material makes actually monitoring everything everyone says an impossible task. All the government can really do is use algorithms to look for suspicious people. It searches the records anonymously–it doesn’t attach names to specific computers or phones, at least not until the algorithms identify them as people of interest. It still remains the case that if the government wants to arrest an American citizen, it has to prove said citizen guilty of a crime. There are many, many private companies currently invading our privacy in much more intimate ways, and we don’t seem to mind–think Facebook, which has access to our profiles, our communications, not just who we talk to, but what we say. Facebook even sells our information to advertisers for profit–at least the Feds don’t do that.

My principle gripe with the program is that it must surely be tremendously expensive to do all of this. The NSA’s data center in Utah, where it is presumed all of this is being kept, may cost $4 billion by the time it is finished, and will cost a further $40 million annually in operating costs. I very much doubt that this is a cost-effective way to reduce crime or terrorism. Say the program prevents one 9/11 attack. That’s 3,000 lives saved, at a cost of $1.3 million per life. There have to be less expensive ways we can reduce the number of people who die violently in the United States. Surely NSA agents have better things they could be doing with their time and expensive salaries than mine electronic data for peculiar combinations of words, or strange connections to callers in Saudi Arabia. What if we used that money to strengthen police presence in high crime areas, or to fight the poverty and cycles of violence that lead to crime in the first place? Instead of spending our money on the ever-expanding capacity to watch people, waiting for them to commit criminal acts, why not invest in discouraging people from wanting to act criminally in the first place?