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Surveillance Rights and Wrongs, Part 1: Begging the Questions

Surveillance Rights and Wrongs, Part 1: Begging the Questions

Privacy activists and others opposed to the NSA's surveillance of Americans contend it has broken the law and breached the Fourth Amendment, but the issue is not necessarily quite that clear. "I'm not sure if 'has the NSA broken the law?' is the right question to ask," said Brian Pascal, a research fellow at UC Hastings College of the Law. "To me, the question is, 'how effective has the oversight been?'"

By Richard Adhikari E-Commerce Times ECT News Network
01/03/14 5:00 AM PT

The NSA's surveillance of Americans' emails, Web searches and phone calls has angered the nation, but lawmakers remain divided on the issue. Bipartisan groups have spoken out against the surveillance and a few have introduced legislation to curb it, but some contend it is essential to protect America from its enemies.

Americans are not hesitant about posting the most intimate details of their lives on the Web. In fact, the NSA would probably do better to drop its surveillance and just get the records of suspects from the Internet companies themselves, though those high-tech companies are now fighting it tooth and nail -- at least publicly. Certainly, that approach would save billions of taxpayer dollars.

Recent developments seem to point to a shift away from the NSA. Are we going to see it reined in? Will there be stricter curbs on what the agency can do and how it does that?

'Common-Sense Reforms'

On Dec. 17, U.S. Federal District Court Judge Richard Leon shook up the debate over the NSA's surveillance activities when he ruled that the agency's collection of telephone metadata is likely a violation of the Fourth Amendment to the U.S. Constitution.

Then, on Dec. 19, the White House released a scathing review of the NSA's surveillance activities by a task force.

On Dec. 20 President Obama indicated he might stop the NSA's collection and storage of Americans' phone records and have phone companies hold the data instead, although he defended the agency, saying he had seen no evidence that it acted inappropriately with the records.

Taken together, these events might presage a change in the NSA's surveillance of Americans.

"The government should always seek to protect the privacy and civil liberties of its citizens, as well as their safety," Jake Laperruque, a fellow on privacy, surveillance and security at the Center for Democracy and Technology, told the E-Commerce Times.

"Ending bulk collection, closing the backdoor search loophole and enacting other common-sense reforms will better safeguard civil liberties without harming the government's ability to protect national security," Laperruque continued.

Defending the Snoops

President Obama last month reiterated claims that various restrictions, safeguards and audits ensure that the NSA and other intelligence agencies do not spy on Americans.

Opponents of the NSA's spying programs might not agree.

First, NSA officials have admitted to illegally collecting metadata about Americans' phone calls, including tracking cellphones worldwide.

Second, the secretive FISA Court, which grants the NSA warrants for surveillance and is claimed by the Obama administration to be one of the checks on the agency's power, may have been talked up. It cannot investigate issues of noncompliance, its chief judge, U.S. District Judge Reggie B. Walton, told the Washington Post.

The NSA's Activities Today

The NSA spies on both Americans and our allies; has infected 50,000 networks worldwide with malware; placed secret servers code-named "Quantum" at key places on the Internet backbone as part of its so-called "Turmoil" system; runs programs such as Quantum and Foxacid to hack into people's browsers; runs the PRISM program to collect users' data; uses Google cookies to tap into people's PCs; and tracks 5 billion cellphone locations worldwide every day.

Facebook hop distance
As Facebook has grown, the number of "hops" separating any two people has decreased dramatically.

Americans' communications with people abroad are prime targets, and the NSA has claimed that only people with links to suspects are its targets. However, the agency's "three hops" rule widens its net considerably.

Here's how the three hops rule works: The first hop targets a suspect's direct friends and acquaintances -- including those on their social media page. The second targets friends of friends. The third goes for, yes, friends of friends of friends.

That could lead to thousands of people being swept up into the NSA's surveillance net. Any two Facebook friends together know practically every one of the social network's approximately 1.3 billion other users, one study found.

"With neither public debate nor court authorization, the NSA is automating guilt by association, on a global scale," Rebecca Jeschke, media relations director for the Electronic Frontier Foundation, told the E-Commerce Times.

Privacy activists and others opposed to the NSA's surveillance of Americans contend it has broken the law and has breached the Fourth Amendment. Judge Leon's ruling appears to bear them out, although he has stayed it pending appeal by the Obama administration. The Justice Department's response was to state the agency's telephone metadata collection program is constitutional.

Police Gone Wild

Local law enforcement agencies are also tracking citizens' cellphones. The latest weapon in their arsenal is the "Stingray" -- a device developed for spy agencies that captures cellphone traffic by simulating a cell tower.

Sometimes, they ask for a "tower dump" -- all the cellphone traffic recorded during a specific period by a particular cell tower.

Tower dumps are widespread, and at least 25 law enforcement agencies own a Stingray, a joint investigation by USA Today, 10 News and Gannett has found.

Proudly Protecting Americans?

Similarly, the NSA has claimed that its surveillance of Americans' phone calls has helped prevent 50 or so potential terrorist attacks, but it has not provided any proof. In fact, Judge Leon ruled that there is no evidence that surveillance of phone calls -- aimed at providing timely information on possible attacks -- does so.

Still, terrorists are turning to mobile phones. For instance, the men who attacked the Taj Mahal Hotel in Mumbai in 2008 used cellphones and VoIP accounts to coordinate their activities. Then there's the Global Islamic Media Front, which has released encryption software for mobile phones running Android and Symbian.

Governments have to keep their citizens safe, Avni Rambhia, digital media industry manager for Frost & Sullivan, told the E-Commerce Times.

In a time when technology is fast dissolving national boundaries and enabling would-be criminals and terrorists to communicate rapidly and set up attacks at frenetic speed, can anyone definitively state that surveillance is entirely wrong?

Above the Law?

"I'm not sure if 'has the NSA broken the law?' is the right question to ask," Brian Pascal, a research fellow at UC Hastings College of the Law, told the E-Commerce Times. "To me, the question is, 'how effective has the oversight been?'"

The FISA Court has found on multiple occasions that the NSA had misrepresented its activities to the court, and NSA officials have withheld the truth even in congressional hearings, Pascal pointed out.

"General Alexander even said that no one within the NSA understood the entirety of the systems," he said.

Despite this, the FISA Court has routinely reauthorized the NSA's surveillance, Pascal noted. "This means that, at least in the eyes of the FISC judges, the NSA's activities were 'legal.'"

If no one understands the system, has it run amok? And in that case, why is the FISA Court reauthorizing surveillance warrants? Is it time the system was overhauled? The task force whose report was released last month suggests that's the case for both the FISA Court and the NSA.

Surveillance Rights and Wrongs, Part 2: No Clear Answers.


Richard Adhikari has written about high-tech for leading industry publications since the 1990s and wonders where it's all leading to. Will implanted RFID chips in humans be the Mark of the Beast? Will nanotech solve our coming food crisis? Does Sturgeon's Law still hold true?


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