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Citizen Brief: Surveillance

Last Week Tonight with John Oliver: Government Surveillance (HBO)

The National Security Agency’s mass surveillance has greatly expanded in the years since September 11, 2001. Recent disclosures have shown that the government is regularly tracking the calls of hundreds of millions of Americans and spying on a vast but unknown number of Americans’ international calls, text messages, and emails.

The government’s new surveillance programs have infiltrated most of the communications technologies we have come to rely on. They are largely enabled by two problematic laws passed by Congress—the Patriot Act and the FISA Amendments Act (FAA)—along with Executive Order 12.333, the primary authority invoked by the intelligence agencies to conduct surveillance outside of the United States. Although the Foreign Intelligence Surveillance Court oversees the government’s surveillance activities, it operates in near-total secrecy through one-sided procedures that heavily favor the government.

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Our Constitution and democratic system demand that government be transparent and accountable to the people, not the other way around. History has shown that powerful, secret surveillance tools will almost certainly be abused for political ends.

The ACLU has been at the forefront of the struggle to rein in the surveillance superstructure, which strikes at the core of our rights to privacy, free speech, and association.


Surveillance Under the Patriot Act

The government claims sweeping authority under the Patriot Act to collect a record of every single phone call made by every single American "on an ongoing daily basis." This program not only exceeds the authority given to the government by Congress, but it violates the right of privacy protected by the Fourth Amendment, and the rights of free speech and association protected by the First Amendment. For this reason, the ACLU challenged the government's collection of our phone records under Section 215 of the Patriot Act just days after the program was revealed in June 2013 by The Guardian. In May 2015, a court of appeals found that the phone records program violates Section 215. 

Despite the revelations, Congress and the public have yet to receive the full story about how the Patriot Act is being used to collect information on Americans. To bring greater transparency to the NSA's surveillance under the Patriot Act, the ACLU filed two motions with the secretive FISC asking it to release to the public its opinions authorizing the bulk collection of Americans' data by the NSA, and we are continuing to litigate a Freedom of Information Act lawsuit that we filed in 2011 demanding the government release informationabout its use and interpretation of Section 215. Read about Section 215 — and other unconstitutional provisions of the Patriot Act — here.

Our earlier work to reform the Patriot Act includes a number of successful challenges to the government's use of and secrecy surrounding National Security Letters.


Surveillance Under the FISA Amendments Act

The FISA Amendments Act of 2008 (FAA) gives the NSA almost unchecked power to monitor Americans' international phone calls, text messages, and emails — under the guise of targeting foreigners abroad. The ACLU has long warned that the statute would be used to eavesdrop on Americans’ private communications and, in June 2013, The Guardian published documents confirming the massive scale of this international dragnet. Recent disclosures also show that an unknown number of purely domestic communications are monitored, that the rules that supposedly protect Americans' privacy are weak and riddled with exceptions, and that virtually every email that goes into or out of the United States is scanned for suspicious keywords.

In 2008, less than an hour after President Bush signed the FAA into law, the ACLU filed a lawsuit challenging its constitutionality. The case, Amnesty v. Clapper, was filed on behalf of a broad coalition of attorneys and organizations whose work requires them to engage in sensitive and sometimes privileged telephone and email communications with individuals located abroad. But in a 5–4 ruling handed down in February 2013, the Supreme Court held that the ACLU plaintiffs did not have standing to sue because they could not prove their communications had actually been surveilled under the law.

In January 2014, the ACLU joined a new challenge to the FAA’s constitutionality in United States v. Muhtorov — on behalf of Jamshid Muhtorov, the first criminal defendant to receive notice that he was surveilled under the FAA. The ACLU argues that the FAA violates both the Fourth Amendment and Article III of the Constitution because it permits the government to intercept the international communications of U.S. residents like Mr. Muhtorov without obtaining a warrant or any kind of individualized court review.


Bringing Transparency to the FISA Court

The ACLU has long fought to bring greater transparency and public access to the FISC — the secretive court that oversees the government's surveillance programs. When the FISC was first established in 1978, it primarily assessed individual surveillance applications to determine whether there was probable cause to believe a specific surveillance target was an agent of a foreign power. In recent years, however, the FISC's responsibilities have changed dramatically, and the FISC today oversees sweeping surveillance programs and assesses their constitutionality — all without any public participation or review.

The ACLU has been advocating and petitioning for access to the FISC for more than a decade, working with Congress and the executive branch, and appearing before the court itself to push for greater transparency. Days after the court's Section 215 order was released in June 2013, we filed a motion seeking access to the secret judicial opinions underlying the NSA's mass call tracking program. We also signed a brief filed in the FISC in support of the First Amendment rights of the recipients of FISC orders, such as telephone and internet companies, to release information about the type and volume of national security requests they receive from the NSA and the FBI.

Secret law has no place in a democracy. Under the First Amendment, the public has a qualified right of access to FISC opinions concerning the scope, meaning, or constitutionality of the surveillance laws, and that right clearly applies to legal opinions interpreting Americans' bedrock constitutional rights. We all have a right to know, at least in general terms, what kinds of information the government is collecting about innocent Americans, on what scale, and based on what legal theory.

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