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NSA Mass Surveillance Programs Unnecessary and Disproportionate

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NSA Mass Surveillance Programs Unnecessary and Disproportionate NSA Mass Surveillance Programs Unnecessary and Disproportionate David Greene, EFF Senior Staf Attorney Katitza Rodriguez, EFF International Rights Director This document was produced by the Electronic Frontier Foundation (EFF), an international non-governmental organization with nearly 30,000 members worldwide from over 100 countries, dedicated to the protection of everyone’s right to privacy, freedom of expression, and association. Founded in 1990, EFF engages in strategic litigation, policy, and advocacy in the United States and works in a range of international and national policy venues to promote balanced laws that protect human rights, foster innovation, and empower consumers. EFF is based in San Francisco and was one of the key civil society groups involved in the drafting of the Necessary and Proportionate Guiding Principles. ELECTRONIC FRONTIER FOUNDATION EFF.ORG 1 Table of Contents Foreword............................................................................................................................................................... 3 Executive Summary.......................................................................................................................................... 4 A Brief Survey of Ongoing NSA Surveillance Activities......................................................................5 Origins of the Current Programs............................................................................................................5 Known Ongoing Mass Surveillance Activities...................................................................................6 FISA Section 702 (50 U.S.C. sec. 1881a).........................................................................................6 “Upstream”........................................................................................................................................................... 7 PRISM..................................................................................................................................................................... 7 USA PATRIOT Act Section 215...........................................................................................................7 CALL DETAIL RECORDS COLLECTION......................................................................................................8 Executive Order (EO) 12333............................................................................................................... 8 MYSTIC................................................................................................................................................................... 9 MUSCULAR........................................................................................................................................................... 9 XKEYSCORE.......................................................................................................................................................... 9 BULLRUN.............................................................................................................................................................. 9 DISHFIRE............................................................................................................................................................ 10 CO-TRAVELER................................................................................................................................................... 10 US Legal Challenges to NSA Surveillance..............................................................................................10 Challenges to “Upstream” Internet Surveillance...........................................................................10 Challenges to Section 215 Telephone Call Detail Records Collection...................................11 Application of the Principles to US Surveillance................................................................................12 Definitions.................................................................................................................................................... 12 “Metadata”/”Content” Distinction.................................................................................................12 Bulk and Persistent Surveillance....................................................................................................14 “Collection” = “Surveillance” = Interference with Privacy....................................................15 Applying the Principles........................................................................................................................... 15 The Legality Principle......................................................................................................................... 15 Necessity and Proportionality in Pursuit of a Legitimate Aim...........................................16 Competent Judicial Authority..........................................................................................................17 Due Process............................................................................................................................................ 18 User Notification................................................................................................................................... 19 Transparency and Public Oversight..............................................................................................19 Integrity of Communications and Systems.................................................................................21 Extraterritorial Application of Human Rights Law.................................................................21 Equal Privacy Protection For Everyone.......................................................................................23 Conclusion......................................................................................................................................................... 23 ELECTRONIC FRONTIER FOUNDATION EFF.ORG 2 Foreword The focus of this paper is to show how the publicly-known National Security Agency (NSA) surveillance operations constitute a violation of human rights as defined by international human rights norms. EFF supports the concluding recommendation of the 2014 Human Rights Committee1 on the United States’ compliance with the International Covenant on Civil and Political Rights (ICCPR), which calls upon the United States to take measures to ensure that any interference with the right to privacy comply with the principles of legality, proportionality, and necessity regardless of the nationality or location of individuals whose communications are under direct surveillance.2 We have used the International Principles on the Application of Human Rights to Communications Surveillance (the “Necessary and Proportionate Principles” or “Thirteen Principles”)3 as a guiding framework to explain how the United States is currently failing to implement those existing human rights protections. The Principles have been endorsed by 400 organizations; they have also gathered support from European and Canadian Parliamentarians, political parties in several States,4 and various prominent domain experts.5 The Principles were developed to apply existing human rights law to the issues arising from the technically sophisticated and pervasive digital surveillance of ordinary individuals. This is, of course, most relevant to the communications surveillance6 being conducted by the NSA and GCHQ. But similarly intrusive practices are also achievable, and are likely currently practiced, by many States. EFF believes that, in order to restore the strong protections provided for by international human rights law, we do not need a new human rights framework. Instead, we need to interpret and apply existing human rights protections appropriately in light of new technological developments and changing patterns of communications, and do so with an 1 The Human Rights Committee is the treaty body that monitors State implementation of the ICCPR, the main human rights treaty. 2 The Human Rights Committee's Concluding Observations during its 110th session. http://tbinternet.ohchr.org/_layouts/treatybodyexternal/SessionDetails1.aspx?SessionID=625&Lang=en 3 “International Principles on the Application of Human Rights to Communications Surveillance.” Available in over thirty languages. July 10, 2013. https://necessaryandproportionate.org/text 4 https://necessaryandproportionate.org/text#elected_officials_political_parties 5 https://necessaryandproportionate.org/text#experts 6 According to the Principles, “Communications surveillance" in the modern environment encompasses the monitoring, interception, collection, analysis, use, preservation and retention of, interference with, or access to information that includes, reflects, arises from or is about a person’s communications in the past, present, or future. "Communications" include activities, interactions, and transactions transmitted through electronic media, such as content of communications, the identity of the parties to the communications, location- tracking information including IP addresses, the time and duration of communications, and identifiers of communication equipment used in communications. ELECTRONIC FRONTIER FOUNDATION EFF.ORG 3 intention to protect human rights. As with all human rights protections, we need to implement these steps in domestic laws to ensure everyone’s right of privacy remains legally protected in the
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