America's Spy State: How the Telecoms Sell Out Your Privacy
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In the wake of the popular outrage over the revelations of AT&T-NSA spying, the Congress amended the Foreign Intelligence Surveillance Act (FISA) in 2008 to retroactively grant U.S. companies immunity from being sued by their customers when they conduct warrantless wiretaps and provide the information to government agencies.
In a recent article in Wired, James Bamford described in detail the NSA’s new “Utah Data Center,” a massive complex that will serve as a global surveillance hub. In the article, Bamford cites a revelation from William Binney, a former NSA senior official and now a whistleblower, that the agency has intercepted “between 15 and 20 trillion” communications (or “transactions” in NSA-speak) over the last decade.
The federal government draws its authority to spy on citizen from a Prohibition-era Supreme Court decision, Olmstead vs. U.S. The Court found that federal wiretapping of the private telephone conversations of a bootlegger without a prior court warrant and the subsequently use of this information as evidence in court did not violate the defendant’s 4th or 5th Amendments protections.
The 1994 adoption of the Communications Assistance for Law Enforcement Act (CALEA) extended federal spying authority.
The Act requires telecommunications carriers to provide “back doors” so that law enforcement agencies and federal intelligence organizations can capture any domestic or international telephone conversations carried over their networks. In 2004, the FCC extended these provisions to apply to broadband networks. Thus, spying expanded from conventional telephone calls to Internet services (e.g., VoIP services like Vonage), peer-to-peer systems (e.g., Skype), caller-ID spoofing (i.e., false number posting) and phone-number portability.
The FBI began building its high-tech surveillance system, the Digital Collection System Network (DCSNet), in 1997. Documents obtained by the Electronic Freedom Foundation (EFF) reveal that DCSNet can execute near-instantaneous wiretaps on almost any telephone, cellphone and Internet communications device. It also connects FBI wiretapping facilities to switches controlled by wireline operators, VoIP companies and cellular providers.
DCSNet allows the FBI to monitor recorded phone calls and messages in real time, create master wiretap files, send digital recordings to translators, track the location of targets in real time using cell-tower information and stream intercepts to mobile surveillance vans. Sprint operates the system over a private, secure and self-contained backbone.
The FBI is now urging Internet companies not to oppose a new proposal that would further extend backdoor access to social-networking websites as well instant messaging and e-mail. It would apply spying requirements to Facebook, Twitter and Xbox Live, among many others. The new provisions would apply to encrypted VoIP software from European firms like the Lichtenstein-based Secfone, available on Android-OS devices.
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The battle over what were once considered sacred Constitutional privacy provisions is heating up.
The Cyber Intelligence Sharing and Protection Act (CISPA) is making its way through Congress; House of Representatives passed it and the Senate is now considering it. Pres. Obama has come out in opposition, warning that he will veto it, insisting: "legislation should address core critical infrastructure vulnerabilities without sacrificing the fundamental values of privacy and civil liberties for our citizens." As currently drafted, CISPA would undermine the Obama administration’s principal Internet proposal, Consumer Privacy Bill of Rights.
CISPA is conceived as supplanting all current privacy laws by ordering all telecoms, Internet service providers (ISPs) and applications companies to hand over all personal data to the NSA and other federal agencies. Civil liberties groups like the EFF warn that the proposed Act lacks meaningful due process or judicial oversight and will essentially end Constitutional protections against unreasonable electronic search and surveillance.
How this surveillance shell game plays out will likely depend on how the Supreme Court rules in Amnesty v. Clapper. The ACLU is representing a broad coalition of attorneys and human rights, labor, legal and media organizations to determine the limits to federal warrantless wiretapping under FISA.