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PRISM's Not-So-Slippery Slope

4:08 PM, Jun 11, 2013 • By JOHN MCCORMACK
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In the Washington Examiner, Timothy Carney warns that the NSA's PRISM program puts the United States on the slippery slope to tyranny:

Citizens that the federal government wants to indict, the federal government can indict if it monitors them closely enough. That's why it's so disturbing to learn that the federal government doesn't need to obtain a warrant on us in order to get our emails and phone records.

But these surveillance powers are used only for hunting terrorists, Obama says. Even if you take him at his word, because so far there is no evidence to the contrary, think about the capabilities you give to government when it can snoop on your phone records and emails.

Maybe Obama hunts only terrorists with it. But our next president could expand it to follow violent felons -- without having to get specific warrants. Why not drug dealers and sex offenders? Tax evaders come next.

When Carney writes that "the federal government doesn't need to obtain a warrant on us in order to get our emails," the "us" in that sentence seems to refer to U.S. citizens. But, in fact, the law requires that warrants must be issued to target communications between two U.S. citizens. As civil liberties activist Glenn Greenwald admitted on Monday, "individual warrants are needed ... when two people are both inside the United States and are both American citizens." 

So could the next president really use the NSA program to target U.S. citizens who are violent felons, drug dealers, or tax cheats, as Carney suggests? No. The president is barred by statute and the 4th Amendment from targeting U.S. citizens in such a manner. "Sec. 702 of FISA only permits targeting of non-U.S. persons outside the U.S. who are agents of a foreign power (i.e., either foreign spies or operatives of foreign terrorist orgs)," former federal prosecutor Andrew C. McCarthy told me in an email. "PRISM involves the implementation of 702, so the president can't 'expand' it in a way that would violate the statute, let alone the Constitution. The STATUTE would be infirm if it violated the 4th Amendment, so obviously the president's implementation procedures may not accomplish what the statute itself may not accomplish."

To repeat, the PRISM program is not designed to target electronic communications among American citizens. But that is not to say that PRISM does not raise privacy concerns. The Washington Post claims that "a great deal" of American data can be "incidentally" scooped up by PRISM:

Analysts who use the system from a Web portal at Fort Meade, Md., key in “selectors,” or search terms, that are designed to produce at least 51 percent confidence in a target’s “foreignness.” That is not a very stringent test. Training materials obtained by The Post instruct new analysts to make quarterly reports of any accidental collection of U.S. content, but add that “it’s nothing to worry about.”

Even when the system works just as advertised, with no American singled out for targeting, the NSA routinely collects a great deal of American content. That is described as “incidental,” and it is inherent in contact chaining, one of the basic tools of the trade. To collect on a suspected spy or foreign terrorist means, at minimum, that everyone in the suspect’s inbox or outbox is swept in. Intelligence analysts are typically taught to chain through contacts two “hops” out from their target, which increases “incidental collection” exponentially.

On the other hand, the administration claims that there are "extensive procedures, specifically approved by the court, to ensure that only non-US persons outside the US are targeted, and that minimize the acquisition, retention and dissemination of incidentally acquired information about US persons." 

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