The Merry Life of Dragnet Surveillance

In the aftermath of Edward Snowden’s revelations in 2013, a grudging acceptance was made by the Obama administration that something had to be done about a roguish surveillance complex unhinged from its foundations.  The National Security Agency had overstretched its powers, to the point where it was not only conducting its standard mischief against foreign targets, but against US citizens roped into the exercise.

The NSA has been in the news again, this time with the reversal by a US appeals court of a lower tribunal’s decision that the Wikimedia Foundation has standing to object to the Upstream program in court.

The central problem to any legal challenge against dragnet surveillance has been proof – proof, that is, of violation and damage to the subject in question.  This was the case in Clapper v Amnesty International, where the Supreme Court observed, almost disdainfully, that Amnesty was mounting a novel approach based on a “speculative chain of possibilities” that could not “establish that injury based on future surveillance [was] certainly impending or [was] fairly traceable to [Section 702 surveillance].”

In October 2015, the point was further tested by Wikimedia and eight other organisations, among them Human Rights Watch and Amnesty International, who faced another sceptical judicial survey.

Alleged again were points that that the NSA’s interception, collection, review and storing of the communications by the groups constituted a violation of both the First and Fourth Amendments. But the parties were hoping that Clapper could be distinguished.

The Upstream program was the main bone of contention, as it could not be said to be limited to communications sent or received by NSA specific targets.  Internet communications about the targets, a sort of eager beaver reach around, could still be caught.

The NSA contended, as it did in all cases on the subject, that the plaintiffs lacked Article III standing, taking the ever predictable ground that necessary secrecy on its operations prevented the adducing of any documentation that damage to the plaintiffs could be proved.

The 2015 opinion found in favour of the NSA, as it was not possible to show that injury had been “real and immediate” as opposed to “conjectural and hypothetical”.  While there had been differences with Clapper, the issue of actual injury, causation and redressability, still remained.

The Fourth Circuit Court of Appeals this week needed little convincing that the foundation’s reach – compromising a trillion communications a year – would at some point fall into the NSA net.  “Wikimedia has plausibly alleged that its communications travel all of the roads that a communication can take, and that the NSA seizes all of the communications along at last one of those roads.”

Another troubling aspect was also heeded, notably the subject of injury under the First Amendment: “And, because Wikimedia has self-censored its speech and sometimes forgone electronic communications in response to Upstream surveillance, it has standing to sue for violation of the First Amendment.”

This news accompanied the revelations of a Foreign Intelligence Surveillance Court opinion during the week that the NSA had shown a distinct lack of “institutional candour” on the subject of breaches to the Fourth Amendment.

The issue of section 702 surveillance under the Foreign Intelligence Surveillance Act remains the persistent problem.  Upstream collection sourced through transits on the backbone routes of the Internet takes the matter beyond mere incidental collection, something bound to happen between American and non-American sources.

As Andrew McCarthy explains, “The NSA must instead capture packets of email-data – which include lots of emails beside the targeted email.  It sifts through these packets, finds and assembles the components of the email it was looking for and discards the rest.”

The clues from the FISA opinion, despite being, at points, heavily redacted, reveal that the entire process the NSA engages in on the subject of upstream collection is bound to fall foul of constitutional protections.

Even if the organisation is, in fact, sifting and discarding received communications, there are still warrantless seizures of material in the absence of probable cause or relevant foreign intelligence purpose. Despite minimisation procedures the NSA is compelled to take, the Fourth Amendment requirement on seizure and search without adequate cause has been the subject of persistent violation.

Added to this the routine use of identifiers of American citizens, used to search databases, a practice specifically disapproved of by the FISA court in 2011, and we are left with an organisation that remains to be tethered. How little has, in fact, changed at the top, leaving the courts to do some necessary, and much needed judicial cleaning.

More articles by:

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

March 20, 2018
Jonathan Cook
US Smooths Israel’s Path to Annexing West Bank
Jeffrey St. Clair
How They Sold the Iraq War
Chris Busby
Cancer, George Monbiot and Nuclear Weapons Test Fallout
Nick Alexandrov
Washington’s Invasion of Iraq at Fifteen
David Mattson
Wyoming Plans to Slaughter Grizzly Bears
Paul Edwards
My Lai and the Bad Apples Scam
Julian Vigo
The Privatization of Water and the Impoverishment of the Global South
Mir Alikhan
Trump and Pompeo on Three Issues: Paris, Iran and North Korea
Seiji Yamada
Preparing For Nuclear War is Useless
Gary Leupp
Brennan, Venality and Turpitude
Martha Rosenberg
Why There’s a Boycott of Ben & Jerry’s on World Water Day, March 22
March 19, 2018
Henry Heller
The Moment of Trump
John Davis
Pristine Buildings, Tarnished Architect
Uri Avnery
The Fake Enemy
Patrick Cockburn
The Fall of Afrin and the Next Phase of the Syrian War
Nick Pemberton
The Democrats Can’t Save Us
Nomi Prins 
Jared Kushner, RIP: a Political Obituary for the President’s Son-in-Law
Georgina Downs
The Double Standards and Hypocrisy of the UK Government Over the ‘Nerve Agent’ Spy Poisoning
Dean Baker
Trump and the Federal Reserve
Colin Todhunter
The Strategy of Tension Towards Russia and the Push to Nuclear War
Kevin Zeese - Margaret Flowers
US Empire on Decline
Ralph Nader
Ahoy America, Give Trump a Taste of His Own Medicine Starting on Trump Imitation Day
Robert Dodge
Eliminate Nuclear Weapons by Divesting from Them
Laura Finley
Shame on You, Katy Perry
Weekend Edition
March 16, 2018
Friday - Sunday
Michael Uhl
The Tip of the Iceberg: My Lai Fifty Years On
Bruce E. Levine
School Shootings: Who to Listen to Instead of Mainstream Shrinks
Mel Goodman
Caveat Emptor: MSNBC and CNN Use CIA Apologists for False Commentary
Paul Street
The Obama Presidency Gets Some Early High Historiography
Kathy Deacon
Me, My Parents and Red Scares Long Gone
Jeffrey St. Clair
Roaming Charges: Rexless Abandon
Andrew Levine
Good Enemies Are Hard To Find: Therefore Worry
Jim Kavanagh
What to Expect From a Trump / Kim Summit
Ron Jacobs
Trump and His Tariffs
Joshua Frank
Drenched in Crude: It’s an Oil Free For All, But That’s Not a New Thing
Gary Leupp
What If There Was No Collusion?
Matthew Stevenson
Why Vietnam Still Matters: Bernard Fall Dies on the Street Without Joy
Robert Fantina
Bad to Worse: Tillerson, Pompeo and Haspel
Brian Cloughley
Be Prepared, Iran, Because They Want to Destroy You
Richard Moser
What is Organizing?
Scott McLarty
Working Americans Need Independent Politics
Rohullah Naderi
American Gun Violence From an Afghan Perspective
Sharmini Peries - Michael Hudson
Why Trump’s Tariff Travesty Will Not Re-Industrialize the US
Ted Rall
Democrats Should Run on Impeachment
Robert Fisk
Will We Ever See Al Jazeera’s Investigation Into the Israel Lobby?
Kristine Mattis
Superunknown: Scientific Integrity Within the Academic and Media Industrial Complexes