Disclaimer: This blog is only a limited understanding of the laws behind mass surveillance . I would love to read comments about things I missed or misunderstood.
After the exposure of SHAMROCK to the public, Congress felt the need to put in limitations for the government’s power to collect information about people. They passed the Foreign Intelligence Surveillance Act of 1978, creating the Foreign Intelligence Surveillance Court, which granted warrants for surveillance. Most of the court proceedings are classified to the public, since their targets need to be secret.
This act permitted the warrantless collection of data from foreign territories, provided that there was no substantial likelihood that communication with a citizen in the United States would be collected. With a court order, the FISC also permitted the surveillance of foreign agents believed to be in the United States. This was intended to prevent programs such as MINARET targeting watchlists of people without outside authorization. The Courts would rule with regards to the Fourth Amendment—the search required probable cause.
The September 11th attacks brought massive changes. Wanting to prevent future terrorist attacks, the Bush Administration increased intelligence gathering greatly. The PATRIOT Act, signed on October 26, 2001, expanded the power of the government to investigate terrorists. One such clause was on surveillance, amending FISA by changing small bits such as surveillance required to be “significantly” focused on foreign intelligence gathering, rather than “primarily” focused. The Protect America Act of 2007 removed the requirement of warrants of surveillance of foreign bodies "reasonably believed" to be outside of the US.
One of the largest changes in surveillance was a 2008 amendment to FISA. Section 702 of the 2008 FISA Amendment outlaws any “intentional” acquisition of information. However, in order to target foreign powers, the government must search through and look for intercepted traffic, which also contains US citizen’s data. This is called “incidental” collection, and the legal basis of this is mixed.
(It’s worth noting that on quick Google searches, the NSA made statements about section 702 and “about” data collection in 2017. )
There are many other topics related to this that I looked into, but decided not to write about. I would love to read perspectives and explanations on any of the following questions. For example, what’s the constitutional/legal precedent for metadata collection? What reasonable expectation of privacy do users have when using the Internet? How is the current administration dealing with the task of mass surveillance? What is the effectiveness of mass surveillance? On a more philosophical note, is it even a good thing to have the ability to access perfect privacy? Should we trade privacy and liberty for greater safety?
The next blog will focus on what we know about modern surveillance programs, and the final blog will focus on Edward Snowden.
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