Through the Transparency Lens: An NSA Domestic Spying Primer

Earlier this June, documents published by the Guardian and the Washington Post revealed the great extent to which the National Security Agency (NSA) is scooping up Americans’ telephone and internet data as part of its surveillance programs. Below are brief descriptions of key words and terms for understanding the issues in play, and links to learn more.

  1. Congressional Rules and Oversight of Intelligence Activities
  2. Edward Snowden
  3. Foreign Intelligence Surveillance Court (FISC) Secrecy
  4. Privacy and Civil Liberties Oversight Board (PCLOB)
  5. Secret Law
  6. Surveillance Statutes
  7. What is Still Secret (That We Know About)

1. Congressional Rules and Oversight of Intelligence Activities – Oversight of Intelligence activities is under the jurisdiction of the US Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence. Only a small portion of the Congress, commonly referred to as the Gang of 8, is briefed on classified intelligence matters. The Gang of 8 includes: the Senate Majority and Minority Leaders; the House Speaker and Minority Leader; and the Chair and Ranking Members of the House and Senate Intelligence Committees. Members are frequently barred from having a staffer with expertise on issues accompany them to the briefing and are barred from discussing any issues covered during the briefing. Members are sometimes even barred from carrying a pen and paper or any other recording device into the briefings. Congressional rules also act as a strong disincentive for any Member who has concerns about a program to reveal their concerns to the public.

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2. Edward Snowden – Edward Snowden has admitted to being the source of the documents. There is general agreement that the public’s focus should be more on the information Mr. Snowden revealed, than Mr. Snowden himself.

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3. Foreign Intelligence Surveillance Court (FISC) Secrecy – The FISC was created in 1978 to bring a measure of oversight and restraint to the government’s domestic surveillance following shocking revelations about the use of federal resources to spy on people the Administration viewed as opponents. The court is charged with overseeing warrants for electronic surveillance from federal agencies – primarily the NSA and FBI. The FISC operates under extreme secrecy, making it impossible for the public to learn about their activities, or how they interpret the law. We do know that the FISC has denied very few of the government’s requests.

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4. Privacy and Civil Liberties Oversight Board (PCLOB) – The PCLOB is the independent Executive Branch agency charged with advising the President on privacy and civil liberties issues with respect to the government’s national security programs. Following the revelations, the PCLOB met with the President and was briefed on the program. The Board has committed to seek input from experts, academics and advocacy organizations about issues related to the government’s domestic spying and to produce a public report containing its conclusions and recommendations.

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5. Secret Law – Secret law refers to authoritative legal interpretations of US government law that are not available to the public. The universe of secret law includes, but is not limited to, opinions by the Office of Legal Counsel (OLC) at the Department of Justice and FISC opinions that significantly interpret law.

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6. Surveillance Statutes – The uncovered programs relate to two statutes: The PATRIOT Act and the Foreign Intelligence Surveillance Act (FISA). The government claims that section 215 of the PATRIOT Act authorizes the mass collection of cell phone data. The government claims the authority to run the PRISM program, which allows the NSA and the Federal Bureau of Investigation (FBI) to obtain online data, under Section 702 of FISA. Congress will have to look at reforms to these laws, and possibly others, to rein in the NSA’s dragnet surveillance.

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7. What is Still Secret (That We Know About) – There are apparently several legal interpretations of the law by the OLC and intelligence communities that relate to the government’s surveillance programs. There are also several FISC opinions that significantly interpret the law. Until sufficient information is released about the legal rationale of the program, the public cannot have an informed public discussion.

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