Beyond Borders: What is Domestic Surveillance?
With all the hoopla surrounding the recent leaks about the NSA’s PRISM program, one of the main issues of concern seems to be that the NSA is monitoring cell phone records and internet accounts in the United States – and that is tantamount to monitoring United States citizens. Cue the outrage.
Under U.S. law, intelligence agencies can monitor the communications of foreign terror suspects, but need the permission of a judge on the Foreign Intelligence Surveillance Act Court to tap into the communications of U.S. citizens and legal residents on U.S. soil.
Do you really think there is some magical formula in place that bars international criminals and terrorists from availing themselves of technology based in the United States? The internet has blurred, if not wholly eradicated, the idea of sovereign borders. And mobile phones have just about achieved the same.
Some examples:
Burn Phones
A burn phone used by terrorists to trigger an IED
A “burn phone” is a temporary cell phone you can purchase all over the place. It is prepaid and loaded with minutes. You do not need a contract, you just buy the phone outright and it is ready to go. In many cases you don’t need to give any personal identification to purchase a burner, and when you do, well . . . god knows how easy it is to get a fake ID. Also, you don’t have to use a credit card to get one – you can buy them with cash on the street. Or online. Or at Walmart. You can give some kid on the street the cash to buy one for you. They’re inexpensive ($20-$50 or so), and they cannot be traced because they do not use a SIM card. And burn phones can be used to remotely trigger IEDs.
There is nothing preventing a member of al Qaeda from getting ahold of a US made burn phone. Criminals and terrorists have been using them for years to communicate under the radar ofintelligence and law enforcement surveillance.
The 9/11 hijackers used burn phones to communicate in the months before their attack. Faisal Shahzad, the Times Square bomb plot suspect, used his burn phone to purchase the Nissan Pathfinder he planned to load up as a VBIED for Times Square.
When a burner phone number comes up as a contact in an ongoing case or intelligence operations, should it be magically exempt from surveillance on the possibility it might belong to a US citizen?
Servers and Hosts
Hezbollah, designated as a terrorist organization by the United States, has websites hosted on servers in Miami, Florida. And you can watch Hezbollah’s al-Manar television, which is banned from doing business in the United States, on your smartphone by using a streaming application made in Texas.
Convicted terrorist Omar Abdel-Rahman, “the Blind Sheik”, who orchestrated the 1993 World Trade Center bombings, has had his websites hosted on servers in Chicago.
The writings of drone fodder terrorist Anwar al-Awlaki, who was al-Qaeda’s chief recruiter, are for sale on Amazon.
Islamist hate preacher Anjem Choudary, who recently went about praising the vicious machete murder of British Soldier Lee Rigby on the streets of the UK, has long had his website hosted with San Mateo, California host Dynadot. (That website might be experiencing terminal technical difficulties these days).
Lashkar-e-Taiba, the terrorist organization who carried out the bloody 2008 Mumbai Massacre, has their farcical ‘charity’ front Jamaat ud Daawa (listed as a terrorist organization front for LeT by the US State Department) website hosted in California. Under their real name.
The list goes on and on.
Yahoo, Gmail and Any Other Email Account
Terrorists and their affiliates enter the United States and hang out here, whether as students, legal residents or visitors. And they use email like anyone else. Ever sign up for an email account using a fake name? Yeah, it’s easy.
Terrorist take advantage of our civil liberties by using them against us all the time. Lashkar-e-Taiba specifically trains their operatives to use United States servers and IP addresses in the hopes of hamstringing our Intelligence and avoiding the less restricted communications surveillance of their own governments.
The foxes are in the henhouse. They don’t even have to be in our country to be in our henhouse.
Signals Intelligence has long been a tool of military force against enemies. During the Civil War, both sides tapped the telegraph communications of the other, and we’ve used technologically advanced SIGINT against enemies since WWII. But the explosion of the internet and real time international communication via the web, cell phones or that hybrid beast we call the smartphone, has literally made it possible for anyone to communicate with anyone else across the world using a variety of open and stealth communication options. But to have the enemy on OUR soil using OUR communications complicates things a bit.
Who is the enemy? Who is chatting with the enemy? Who is that guy in Boise on that burn phone number that the guy from Lahore visiting his aunt in Jersey City keeps texting? Do you need a warrant to scope that out? Well sure, if you cross certain thresholds. And if you do, the FISA court is right there to deal with the who, what, when, where, how and why. But in the stages of picking up the pings and dings of who is connected to who on the borderless web, asking our Intelligence agencies to pretend the cyber borders of the United States have any structural integrity is absurd.
When the NSA knows with certainty the data they are looking at, or want to look at, is tied to a citizen of the US, they must get a warrant to search the content of that data. When they are not sure, they can retain intelligence data with the assumption the target is not a US citizen. Any indication the target is or could be in the US, requires an analyst to investigate and determine the status.
This morning, UK newspaper The Guardian again released classified documents from FISA. Despite the writers’ focus on portraying the NSA’s procedures for collecting intelligence as overly broad, they give out a lot of information about the safeguards in place that prevent the NSA from just grabbing communications content from US citizens. I won’t link to an article containing classified documents, but here are some samples of the procedures as The Guardian explains them:
“Section 702 of the Fisa Amendments Act (FAA), which was renewed for five years last December, is the authority under which the NSA is allowed to collect large-scale data, including foreign communications and also communications between the US and other countries, provided the target is overseas.FAA warrants are issued by the FISA court for up to 12 months at a time, and authorise the collection of bulk information – some of which can include communications of US citizens, or people inside the US. To intentionally target either of those groups requires an individual warrant.”
Where the writers get upset is the reality that the metadata (which is what the “bulk information” is) may contain communication information of US citizens and it’s often retained for years. But again, to actually DO anything with it requires a warrant.
So what if some information or indication arises that the target the NSA is looking at is actually in the United States?
“If it later appears that a target is in fact located in the US, analysts are permitted to look at the content of messages, or listen to phone calls, to establish if this is indeed the case.”
An analyst looks to see if that is the situation. Why? Because if it is, they have to go get a warrant. So they are allowed to peek to see if they need a warrant or need to stop monitoring the communication while the target is in the US.
“NSA minimization procedures signed by Holder in 2009 set out that once a target is confirmed to be within the US, interception must stop immediately”
Okay. Get a warrant.
The metadata cannot be filtered this way if there is no information about the location of the target. What does that mean? That means if Target A (presumably under surveillance authorized by a warrant) is communicating with phone number B, and no one can tell who owns phone number B, the data tied there (logs off calls from A to B) doesn’t have to be destroyed. If an analyst determines these communications look to have significant intelligence value, they will . . . get a warrant.
The writers at The Guardian are ginning up outrage over the fact that it is Intelligence Analysts who are determining whether a potential target is in the United States and whether they need to get a warrant to eyeball that target a little harder. What do they think Intelligence Analysts do? The alternative is to have a slew of US Attorneys bogged down reviewing every single bit of metadata BEFORE an analyst sees it, and then have to whip together warrants in singularity for every one on the potential chance that the information ties to someone who may or may not be in the United States and may or may not be a target of interest to the NSA. That is ridiculous. The majority of data sets are of no interest to theNSA. Having a pack of attorneys and a court reviewing each as a prophylactic measure would be a procedural and logistical nightmare – not to mention it would require a massive budget to pay all the attorneys reviewing the metadata.
At some point common sense has to prevail. The legislature and the courts have established procedures to handle these cases in a manner that allows the NSA to do what it is supposed to do with as much reasonable legal oversight as can practically be implemented. And they follow those procedures to the letter as best they can.
After the Boston Marathon bombings, people expressed outrage because the Tsarnaev brothers were not under surveillance. Well one of them is a US Citizen and the other was a legal resident of the US. Neither were suspects in any crime before they set off bombs at a foot race. There was no probable cause to get a warrant on them, and obviously, the NSA wasn’t listening in on their phone calls, reading their emails or bugging their house. Even with all the potential flags going on, even with Russian Intelligence warning about their activities, the Tsarnaevs were not under domestic surveillance. They were living their lives under the protection of the 4th Amendment.
And so are you.
Read more: http://sofrep.com/22385/beyond-borders-what-is-domestic-surveillance/#ixzz2Y4Y6Amsd
