Page 151 - Privacy in a Cyber Age Policy and Practice

BALANCING NATIONAL SECURITY AND INDIVIDUAL RIGHTS 139

national security protection. Whether it is subject to the level of oversight
and accountability necessary to ensure that it will not be abused to spy
on people because of their political views, to wantonly ensnare innocent
people, or to engage in any other variety of misuse is less clear. This question
deserves separate treatment.

D. PRISM
The PRISM program acquires electronic communications (including
e-mails, chat logs, videos, VoIP, file transfers, and social networking details)
from American-based technology firms, including Microsoft, Apple,
Google, Yahoo, and Facebook. 124 The program targets non-U.S. persons
located outside the United States. PRISM can be used for various national
intelligence purposes, such as keeping under surveillance the military com-
munications of nations hostile to the United States. Here, only PRISM’s use
as a counterterrorism measure is under review.
The program is authorized by Section 702 of the FISA Amendments
Act (FAA) of 2008. 125 Under Section 702, the U.S. government does not
unilaterally obtain information on foreign targets from the servers of
U.S. ISPs. All information collected is for counterterrorism purposes and
is gathered with the knowledge of the ISP. These actions are authorized
by written directives from the U.S. Attorney General and the Director of
National Intelligence, which are approved by FISC for a period of one year
and can subsequently be renewed. The NSA thus does not need an individu-
alized court order to gather intelligence on suspected overseas intelligence
targets. 126 Subsequent leaks of other content-collecting programs include
the bulk collection of “almost 200 million text messages a day,” (with purely
domestic communications removed) 127 as well as MUSCULAR, a program
that bypasses web firms’ security to collect data without their consent (as
opposed to PRISM, which is done in cooperation with the firms). 128
In addition to facilitating the government’s surveillance of the live
communications and stored data of foreign targets operating outside the
United States, PRISM also collects the electronic data of select Americans
who communicate with foreign targets. 129

1. The Legal Basis for PRISM’s Surveillance of Foreign Nationals Abroad

Collecting the phone records of Americans is a concern for many American
critics; the collection of information about foreigners received much less
attention. The question though stands: what are the rights of non-Americans
under constitutional, domestic, and international law?