NSA Sweep of Yahoo Emails Reflects Vulnerability of Consumers’ 4th Amendment Rights

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The revelation underscores that the threats to private communications come not only from malicious foreign attackers but also from the US government, says the ACLU’s Ashley Gorski

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Story Transcript

KIM BROWN, TRNN: Welcome to the Real News Network. I’m Kim Brown in Baltimore.

The federal government has systematically spied upon Yahoo email accounts according to a Reuters story that was published on Tuesday. The story relies on several former employees who say that Yahoo agreed to install spy software to search all incoming and outgoing emails for certain keywords or phrases. Furthermore, Reuters reports that Yahoo’s chief security officer Alex Stamos decided to leave Yahoo in protest over the company’s agreement to comply with the government in this matter. Security experts say that such government surveillance of email accounts is far more sweeping than we know.

Joining us to discuss this latest email scandal is Ashley Gorski. She is a staff attorney at the ACLU’s national security project where she works on issues related to electronic surveillance, national security, prosecutions and detentions at Guantanamo Bay. Ashley thank you so much for joining us here on the Real News.

ASHLEY GORSKI: Thank you so much for having me Kim.

BROWN: Ashley, the Reuters reports which Yahoo has now partially and carefully denied saying that it currently does not have spyware on its servers, leaves many questions unanswered. Based on what you know from this story and assuming that it’s true, how serious would you say that the government spying on Yahoo email accounts is?

GORSKI: Well Kim, assuming that the facts reported in the story are accurate, it appears that the order that was served on Yahoo is unprecedented. The government according to the Reuters report, essentially ordered that Yahoo conduct a general search in all of its customers incoming emails in order to locate information that was specifically of interest to the FBI or the NSA. This is really reflecting of a new surveillance paradigm in which the government is constantly scanning our communications for keywords or key terms that are of interest to it.

BROWN: So other countries that provide email services such as Apple, Microsoft, and Google have issued statements that they did not receive such a sweeping government request and that if they had they would’ve challenged it in court and apparently Yahoo did not. Could Yahoo have challenged it and would it have been able to stop the request if it had?

GORSKI: We believe based on the reporting and the admittedly the details are sketchy but it does appear that Yahoo could have challenged this order in the court. Whether it would have been successful is harder to say but it is deeply disappointing that Yahoo simply chose to comply with such a sweeping surveillance order that completely violated the 4th amendment. In a post known world customers are relying on tech companies more than ever to stand up to these novel spying demands in court in large part because the costumers themselves have no opportunity to challenge this spying in a judicial form. There are many legal documents that serve as barriers to individuals who are concerned about the surveillance of communications to challenge that surveillance in a civil court.

BROWN: But doesn’t US law, including the Foreign Intelligence Surveillance Act or FISA, state that such surveillance requests have to be approved by the FISA court? Could it be that the FISA court would not have approved such a blanket surveillance request?

GORSKI: So it’s still hard to say which authority this order was issued personally to. Right now, most of the speculation points toward an authority known as section 702. This is a portion of a law called the Foreign Intelligence Surveillance Act Amendments Act. It was enacted in 2008. Under section 702 of the FAA, the government just goes to this secret surveillance court which is known as the Foreign Intelligence Surveillance Court and gets an order on an annual basis that allows it to target any non US person located abroad who’s reasonably likely to communicate what’s known as foreign intelligence information. That standard is defined extremely broadly to encompass even basic information that relates to the foreign affairs of the United States.

So if this surveillance personally to section 702, the Foreign Intelligence Surveillance Court did not individually, necessarily approve this surveillance on the target of this surveillance. What this surveillance court may have done is issue at a very high general abstract level, an authorization with this kind of surveillance to occur but it wasn’t looking at the particular targets of the surveillance and it’s unknown whether the courts specifically evaluated the lawfulness of the [inuad.] of conducting this kind of search on it’s own.

BROWN: That’s been a lot of the complaints of privacy advocates is that the FISA courts, what happens in the FISA courts are not disclosed to the public. So there’s no way of independently verifying what is actually being requested and whether or not it’s legal or constitutionally in that way. But if the FISA court approved it what does this mean for privacy in the United States? Has the fourth amendment which is supposed to protect one’s privacy from arbitrary government searches, has that effectively been suspended?

GORSKI: Well I would sure hope not. There are other judicial forms for which to challenge the lawfulness of this surveillance. Ordinary article 3 courts may arrive conclusions that distinct from the Foreign Intelligence Surveillance Court conclusions as we saw for example in example with the program that was disclosed by Edward Snowden involving the collections of American’s call record. The bulk collection of virtually every call placed on major American telephone networks.

The second circuit ruled that that program was not authorized by the statute and subsequently congress [inaud.] USA Freedom Act which put an end to the program. But ordinary article 3 courts may not necessarily agree with the Foreign Intelligence Surveillance Courts conclusions. So the FISC shouldn’t have the last word. Unfortunately, again as I mentioned at the onset, it is very difficult to challenge the secret surveillance in ordinary open public article 3 courts.

BROWN: Ashley this is not the first privacy scandal Yahoo has been involved with and just a few weeks ago it was revealed that 5 hundred million yahoo accounts were hacked. What does this say about Yahoo’s security policies and privacy protections more generally when it comes to our activity online?

GORSKI: I think again it underscores the need for individual consumers to be very aware about the threats to their private communications only from malicious foreign actors but also from the US government.

BROWN: Does the US need stronger laws and regulations in order to protect privacy?

GORSKI: Absolutely. In the wake of the Snowden disclosures we have seen some modest peace [inaud.] reforms. As I mention in the USA Freedom Act which put an end to the bulk collection of Americans call records and a separate policy change within the executive branch called presidential policy directive 28 which extended some modest rights, recognized the interests in a modest way of the privacy interests of non-US persons. But much more significant reform is need and in particular if this surveillance was conducted in section 702, congress needs to have more information about how section 702 is actually being used and we as a nation need to debate much more robustly and much more openly legitimacy of this surveillance authority which is set to expire in December of next year.

BROWN: Out of curiosity Ashely, are there any members of congress who are actively pushing to try to make some of this more transparent. Especially the nature of the FISA courts because as you mentioned and as most of you know, all of these requests and grants are being conducted in secret and not being disclosed and people are not sure whether much of this is even legal. So who in congress is actually working on behalf of privacy experts or half on the American public to make sure that most of these proceedings are being made more public and more transparent?

GORSKI: I would just note that there has been marginal increases in transparency around the court of intelligence surveillance court but there’s still significant obstacles to actually understanding what’s going on there. I would say in terms of congress people on our side, Senator Ron Biden has been absolutely invaluable to this fight and continues to push assiduously for greater transparency in FISA court and also for surveillance reform. While he was in the senate Mark Udall as well. Also while he was in the senate long ago, Russ Feingold and it appears that Russ Feingold may be joining the legislature again. I’m not sure what his poll numbers look like but he’s also been an advocate. There’s definitely, contingent legislatures. I don’t work directly on the policy side. As a litigator I don’t lobby but there are definitely legislatures who have been supportive of civil liberties and privacy communities.

BROWN: We’ve been speaking with Ashley Gorksi. She is a staff attorney at the ACLU’s national security project. She works on all these issues related to electronic surveillance, national security, prosecutions, and detentions at Guantanamo. Ashley we appreciate you joining us today. Thank you.

GORSKI: Thank you.

BROWN: And thank you for watching the Real News Network.

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