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In our 718th issue:
In most issues of EFFector, we give an overview of all the work we’re doing at EFF. Today, we’re doing a deep dive into a single issue: the NSA's recent announcement that it will no longer conduct "about" searches as part of its Upstream surveillance.
You may have seen the NSA in the news lately announcing that it will no longer use one of its most controversial surveillance techniques.
This is a win for privacy protections, for groups like EFF fighting unlawful surveillance in the courts, and for anyone who pushed for surveillance reform by signing a petition, contacting their lawmakers, or otherwise voicing their concerns about warrantless spying. But it’s only a first step.
So what exactly did the NSA say it would stop doing?
Late in the day on a Friday in April, The New York Times reported—and the agency quickly confirmed—that the NSA will no longer conduct “about” searches of the full content of Internet communications.
“About” searches are searches of online communications—including to and from innocent Americans—that the NSA runs after it intercepts and copies communications directly from the high-capacity cables that carry Internet traffic as a part of its Upstream program. The U.S. government has claimed these warrantless searches of Americans’ email are allowed under Section 702, enacted as part of the FISA Amendments Act, which is set to expire at the end of the year.
While the NSA will continue to look through the “to” and “from” fields of communication to see if they contain any identifiers that the agency has determined are connected to foreign intelligence targets, they will no longer look through the body of those communications to see if they mention—or are “about”—these identifiers. Not only did the NSA stop these searches, the agency said it would delete the “vast majority” of the information it collected under Section 702 “to further protect the privacy of U.S. person communications.”
The NSA has long defended these “about” searches as both necessary for national security and impossible to avoid due to the technical limitations of the Upstream program. In the NSA’s own announcement, it acknowledged that losing “about” searches would cost it “some other important data.”
The NSA’s willingness to give up what it has described as a crucial tool as well as go back and delete communications it has already collected was a welcome but somewhat shocking development.
But, as the NSA admitted, this decision was a result of “inadvertent compliance incidents,” or violations of court-imposed restrictions. In other words, the court tasked with overseeing the NSA’s surveillance programs told the NSA it shouldn’t be doing these privacy-invasive searches of Americans’ communications.
And that’s an argument we’re familiar with. For nearly a decade, EFF has argued in court that “about” searches and other searches and seizures of Americans’ communications without a warrant are unconstitutional. In a case currently in federal court—Jewel v. NSA—EFF is suing the NSA over “about” searches and other privacy-invasive aspects of Upstream surveillance under Section 702.
Despite prolonged stalling from the U.S. government, we’re in the process of finally getting some answers about how the NSA’s surveillance actually works. At the end of this week, we’ll be back in court to figure out just what information the government has to hand over as part of our lawsuit.
In addition to continuing to fight in the courts, EFF is calling on lawmakers to stand up for the privacy of their constituents as Congress considers reauthorizing Section 702 before it expires at the end of this year. These changes should include codifying the NSA’s announced end of “about” searches.
The breadth of these “about” searches was one of the reasons the NSA swept up so many innocent Americans’ communications, so the announced end of “about” searches is good news for anyone who wants government surveillance to follow the law. But there’s much more to be done to rein in unconstitutional spying.
Tell your representatives in Congress to protect their constituents’ privacy and let warrantless Upstream surveillance lapse when Section 702 sunsets at the end of the year. And stay up to date on EFF’s fight in court to end the government’s unlawful invasion of your privacy.
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Editor:
Kate Tummarello, Policy Analyst
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