Thursday, January 30, 2014

The Legal Fight Against Warrantless Surveillance Is Gaining Steam


Director of National Intelligence James Clapper speaks at the CIA in 2011, as President Obama looks on. 

At the urging of members of Congress, Director of National Intelligence James Clapper has agreed to reveal, within 30 days, whether or not US intelligence agencies have targeted American citizens. Meanwhile, a Colorado man facing terrorism charges has directly challenged the constitutionality of the NSA's surveillance activities. Combined, both moves are inviting even more scrutiny to the US intelligence community's controversial interpretations of surveillance laws that made programs like PRISM legal in the first place.

In a Senate hearing yesterday, Sen. Ron Wyden (D-Ore.), who has criticized the NSA's activities from the very beginning of the PRISM scandal, pressed Clapper, CIA Director John Brennan, and FBI chief James Comey for more transparency regarding their legal basis for their domestic surveillance activities. According to the Verge, Brennan agreed to answer whether or not the Computer Fraud and Abuse Act, which has generally been used to prosecute hackers, applies to his agency. Comey agreed to explain what burden of proof FBI agents require before using cell tower location data to track suspects.

Reining in surveillance activities will require a legal fight, and credit to Wyden and the other critical members of Congress at the hearing,for those three commitments all promise to shed important light on what rationale critics need to push back against. 

Comey laying out the FBI's legal basis for location tracking will be particularly interesting. Since at least the mid-1990s, the FBI has been able to pull cell location data using so-called 'Stingray' technology, which the bureau has argued does not require a warrant. While individual states have banned such warrantless tracking, the FBI has dragged its heels in revealing details about its program, all while continually eroding privacy protections.

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