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Kalanges FINAL 6-Pdfa.Pdf (311.3Kb) Modern Private Data Collection and National Security Agency Surveillance: A Comprehensive Package of Solutions Addressing Domestic Surveillance Concerns “The advancement and diffusion of knowledge is the only guardian of true liberty.” – James Madison1 I. INTRODUCTION …………………………………………………..644 II. BACKGROUND …………………………………………………...647 A. FISA AND THE 2001 PATRIOT ACT …………………………...647 B. NSA JURISPRUDENCE IN 2013: IS BULK TELEPHONY METADATA COLLECTION CONSTITUTIONAL OR UNCONSTITUTIONAL? ……………………………………….651 C. CONGRESSIONAL RESPONSE TO FISA CHALLENGES ………...654 D. LEGISLATIVE IMPACTS ON NSA POLICY …………………….656 E. THE USA FREEDOM ACT v. THE FISA IMPROVEMENTS ACT ……………………………...657 1. The USA Freedom Act: Congressman Jim Sensenbrenner …………………….657 2. The FISA Improvements Act: Senator Diane Feinstein ………………………………662 3. The First Landmark Attempt to Prompt Legislative Reform? …………………………………………….…666 III. METHODS OF SURVEILLANCE: HOW BIG IS THE BIG DATA CONNECTION? …………………………………………………...668 IV. THE FEDERAL TRADE COMMISSION (FTC): PROVIDING POSSIBLE GUIDELINES FOR CONSTRAINTS ON FUTURE SURVEILLANCE OF U.S. CITIZENS …………………………………………………………672 V. SUGGESTIONS FOR NSA REFORM ……………………………….674 A. A COMPREHENSIVE PACKAGE FOR REMEDYING FUTURE ACTS OF SURVEILLANCE ……………………………………………..674 B. A COMPREHENSIVE PACKAGE FOR REMEDYING PAST ACTS OF SURVEILLANCE ……………………………………………..675 VI. CONCLUSION ………………………………………………….........676 1. STEVE COFFMAN, WORDS OF THE FOUNDING FATHERS: SELECTED QUOTATIONS OF FRANKLIN, WASHINGTON, ADAMS, JEFFERSON, MADISON AND HAMILTON, WITH SOURCES 127 (2012); The Daily Show (Comedy Central television broadcast 2013) (commenting on NSA surveillance practices stating, “[i]t’s like Benjamin Franklin once said: ‘Those who would trade liberty for security should never find out that that decision has already been made for them’”). 643 644 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 34 I. INTRODUCTION Section 702 of the Foreign Intelligence Surveillance Act (FISA) man- dates warrantless electronic surveillance of suspected foreign communica- tions by the National Security Agency (NSA).2 Section 215 of the 2001 USA Patriot Act,3 an amendment to FISA, also allows for a sweeping col- lection of domestic and foreign business records from private phone com- panies, to be queried with a deferential showing of the information’s rele- vance to foreign intelligence.4 The NSA may accordingly subpoena and buy data stored by private companies to conduct mechanical searches to find foreign intelligence.5 Meanwhile, companies like Facebook and Google sell analyzed information on individuals to advertisement companies, while research empires create massive data collection and analysis systems target- ing consumers.6 Like these social networking websites and search engines, a private corporation, Apple, is gathering personal information from Siri requests and storing it in Apple’s “data farm.”7 Siri requests and infor- mation are stored for two years while the NSA’s telephony metadata sur- veillance program8 stores business communication records for up to five 2. Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. § 1801 (1978), amended by Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008 (FISA Amendments Act), 50 U.S.C.A. § 1881 (West 2008). 3. Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. § 1801, amended by Uniting and Strengthening America by Providing Appropriate Tools Required to Inter- cept and Obstruct Terrorism Act (USA Patriot Act) of 2001, 50 U.S.C. § 1861 (2001). 4. Compare Am. Civil Liberties Union v. Clapper, 959 F. Supp. 2d 724 (S.D.N.Y. 2013) (rejecting the proposition that the telephony metadata collection program is unconsti- tutional), with Klayman v. Obama, 957 F. Supp. 2d 1 (D.D.C. 2013) (holding the telephony metadata surveillance program unconstitutional). 5. See Neil M. Richards, The Dangers of Surveillance, 126 HARV. L. REV. 1934, 1941 (2013). 6. See id. 7. See Robert McMillan, Apple Finally Reveals How Long Siri Keeps your Data, WIRED (Apr. 19, 2013); Nick Hide, Apple Keeps your Recorded Siri Questions on File for Two Years, CNET UK (Apr. 19, 2013, 4:02 PM), http://crave.cnet.co.uk/mobiles/apple- keeps-your-recorded-siri-questions-on-file-for-two-years-50010987/; Patrick C. Toomey, ‘Let’s Put the Whole Elephant out There’: President Obama’s Speech and Bulk Searches of Americans’ Emails, ACLU BLOG (Aug. 12, 2013, 6:21 PM), http://www.aclu.org/blog/national-security/lets-put-whole-elephant-out-there-president- obamas-speech-and-bulk-searches. 8. Telephony metadata collection describes bulk collection and analysis of infor- mation pertaining to virtually every phone call a person targeted for foreign surveillance makes. This includes the duration of calls, phone numbers, dates, and times. This infor- 2014] MODERN PRIVATE DATA COLLECTION 645 years.9 Also, Apple did not openly inform customers of the collection and storing of their personal information, just like the NSA did not inform Unit- ed States citizens that their communications may be swept.10 The Apple iPhone licensing agreement asserts that Siri requests “will be recorded and sent to Apple in order to convert what you say into text.”11 But the agree- ment fails to specify how long the data will be stored and what other infor- mation Siri is storing, including addresses and other personal data.12 The NSA PRISM13 program, created pursuant to section 702, has a direct con- nection to not only information stored by Apple, but also Google, Face- book, and other companies engaging in data collection, storage, and com- munication facilitation.14 While the targeted information collected through PRISM and telephony metadata collection is foreign intelligence,15 intelli- gence officials argue that surveillance programs naturally cannot find for- eign targets without initially looking through both foreign and domestic data.16 Consequently, domestic privacy concerns about personal infor- mation storage and use by private companies as well as the NSA deserve closer scrutiny. President Barack Obama announced reforms on NSA surveillance practices, including those of section 702 and section 215, on January 17, 2014.17 Additionally, a series of nearly thirty legislative proposals in 2013 aimed to overturn the 2008 FISA Amendments Act (FAA),18 or otherwise modify FISA, while keeping most surveillance powers intact and improving mation is analyzed to acquire foreign intelligence such as the location of the communicating targets. See infra text accompanying notes 72 and 80. 9. See infra text accompanying notes 72 and 80; Klayman, 957 F. Supp. 2d at 14. 10. See also Richards, supra note 5, at 1941. 11. Robert McMillan, IBM Worries iPhone’s Siri Has Loose Lips, CNN (May 24, 2012, 9:05 AM), http://www.cnn.com/2012/05/23/tech/mobile/ibm-siri-ban. 12. Id. 13. There is no known acronym for PRISM. See, e.g., Klayman, 957 F. Supp. 2d at 11. 14. See infra text accompanying note 218. 15. 50 U.S.C.A. §§ 1861, 1881a (West 2011). 16. See, e.g., infra text accompanying note 154. 17. See Transcript of President Obama’s Jan. 17 Speech on NSA Reforms, WASH. POST, Jan. 17, 2014, http://www.washingtonpost.com/politics/full-text-of-president-obamas- jan-17-speech-on-nsa-reforms/2014/01/17/fa33590a-7f8c-11e3-9556- 4a4bf7bcbd84_story.html; Mark Mazzetti & Scott Shane, Threats Test Obama’s Balancing Act on Surveillance, N.Y TIMES, Aug. 9, 2013, http://www.nytimes.com/2013/08/10/us/threats-test-obamas-balancing-act-on- surveillance.html?_r=0. 18. 50 U.S.C.A. § 1881a (West 2011) (amending FISA to extend surveillance prac- tices to intercept the contents of foreign communications under section 702 until 2017 and provide guidelines for modern warrantless foreign intelligence electronic surveillance). 646 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 34 NSA data collection practices.19 The Privacy and Civil Liberties Oversight Board (PCLOB), created by executive order back in 2004 to oversee NSA surveillance with civil liberties in mind, also kick started investigations on section 215 Patriot Act and section 702 FISA surveillance following unfa- vorable media reports on the NSA.20 The American Civil Liberties Union (ACLU), with some success, vigorously advocates for exposure of NSA practices that impinge on Fourth Amendment rights by unreasonably searching and seizing domestic data.21 Finally, the Federal Trade Commis- sion (FTC) is implementing a series of reforms to give consumers more control over and information about mass data collection of personal infor- mation.22 These actions appear to provide a promising foundation for securing the electronic privacy rights of United States citizens. Yet President Obama proposed legislation, and a handful of court opinions uphold much of the current NSA surveillance practices, projecting that the program will contin- ue relatively unchanged.23 With the expansion or continuation of phone records surveillance, there is also potential for collection of virtually every Siri request made by anyone since Apple began storing these requests.24 If practices of collecting targeted communications continue as they did prior 19. See, e.g., H.R. 2818, 113th Cong. (2013) (repealing “the USA PATRIOT Act and the FISA Amendments Act of 2008, and for other purposes”); S. 1215, 113th Cong. (2013) (strengthening “privacy protections, accountability, and oversight related to domestic surveillance conducted pursuant to the USA PATRIOT ACT and the Foreign Intelligence Surveillance Act of 1978”); H.R. 2849, 113th Cong. (2013) (amending the “Foreign Intelli-
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