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NSA Can Divert American Internet Traffic Overseas for Warrantless Collection

The NSA and supporters of the surveillance state constantly insist the federal government doesn’t unconstitutionally spy on Americans. Of course, this is utter tripe. Now we have even more evidence that the federal spy-state simply ignores constitutional restrictions on their actions.

Technically, the NSA can’t spy on Americans without the approval of a FISA Court judge. This process falls far short of the warrant requirements enshrined in the Fourth Amendment. But the federal spies don’t even abide by these limited restrictions on their operation.  A recently published report reveals that the spy-state can use loopholes in the law to gather up reams of electronic data belonging to Americans without a warrant, or even the limited oversight provided by the FISA Court.

The NSA can simply divert data overseas so it can gather it without any restrictions. A recent report by the Century Foundation reveals how this “traffic shaping” works.

“This report describes a novel and more disturbing set of risks. As a technical matter, the NSA does not have to wait for domestic communications to naturally turn up abroad. In fact, the agency has technical methods that can be used to deliberately reroute Internet communications. The NSA uses the term “traffic shaping” to describe any technical means the deliberately reroutes Internet traffic to a location that is better suited, operationally, to surveillance. Since it is hard to intercept Yemen’s international communications from inside Yemen itself, the agency might try to “shape” the traffic so that it passes through communications cables located on friendlier territory. Think of it as diverting part of a river to a location from which it is easier (or more legal) to catch fish. The NSA has clandestine means of diverting portions of the river of Internet traffic that travels on global communications cables.”

Technically, if the feds want to access an American’s data within the U.S. for national security reasons, it must go to the FISA Court. But when the government collects data outside the U.S., it does so under a much less restrictive executive order signed by Pres. Ronald Reagan. EO12333 significantly expanded the NSA’s collection capabilities to both foreign and domestic targets. Actions under the EO fall solely under the jurisdiction of the executive branch with no judicial oversight. Former NSA technical director William Binney called the EO a “blank check” for the intelligence agencies.

By routing traffic overseas, the NSA can collect and store the date of any American without any restriction whatsoever. Think of it like the police blocking every road and forcing drivers to go through a checkpoint.

The extent of the NSA’s ability to “shape” Internet traffic remains unclear due to the highly classified nature of surveillance activity. Nevertheless, report author Sharon Goldberg said the NSA can use its legal powers to “sidestep legal restrictions imposed by Congress and the surveillance courts.”

Looking at the history of the NSA and what we’ve learned about federal data collection through documents released by Edward Snowden, it is certain that if the agency has the technical ability to use such techniques – it has and will continue to do so.

In fact, former State Department official John Tye turned whistleblower. He had classified knowledge about how EO12333 works, and confirmed in a 2014 interview that the government could “keep and use” the data collected on potentially millions of Americans, even if the sole target was an overseas foreigner.

“Hypothetically, under 12333 the NSA could target a single foreigner abroad. And hypothetically if, while targeting that single person, they happened to collect every single Gmail and every single Facebook message on the company servers not just from the one person who is the target, but from everyone—then the NSA could keep and use the data from those three billion other people. That’s called ‘incidental collection.’ I will not confirm or deny that that is happening, but there is nothing in 12333 to prevent that from happening.”

Section 702 of the FISA Amendment Acts governs collection of foreign data. It will expire later this year and Congress will have to reauthorize it. Goldberg calls for Congress revise the statute to provide more protection for Americans.

“Congress should not miss this opportunity to consider revising FISA’s definition of ‘electronic surveillance’ in order to eliminate loopholes that allow the executive branch to unilaterally conduct surveillance of American internet traffic.”

This almost certainly won’t happen. Congress has had more than 40 years to fix the problem. In 1975, Sen. Frank Church issued a poignant warning about the surveillance state on NBC Meet the Press, saying it created the potential for “total tyranny.”

If this government ever became a tyranny, if a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back.

OffNow has developed a plan to address the surveillance from the state level. State and local governments should simply stop cooperating with federal spies as long as they insist on circumventing and ignoring the Constitution. Click HERE for more information.


Photo by Quinn Dombrowski via Flickr.