Page 158 - Privacy in a Cyber Age Policy and Practice

146 PRIVACY IN A CYBER AGE

3. Cross-Border Communications

The government’s initial position has been that PRISM is not targeting
Americans or those known to reside within the borders of the United
States. 176 In addition, the NSA cannot target a foreign communication with
the intention of back tracking to a person in the United States. 177
However, critics of the PRISM program, such as Senator Ron Wyden
(D-OR), have argued that a loophole in Section 702 allows the government
to conduct “backdoor” or warrantless searches of Americans’ communi-
cations. 178 Specifically, critics argue that the incidental collection of data
belonging to Americans who communicate with foreign nationals abroad
further increases the potential pool of Americans being electronically
monitored by the government. When the NSA collects information on a
foreign target “means, at minimum, that everyone in the suspect’s inbox or
outbox is swept in.” Furthermore, “intelligence analysts are typically taught
to chain through contacts two ‘hops’ out from their target, which increases
‘incidental collection’ exponentially.” 179 And the 2008 amendment to
FISA removed the warrant requirement for any communication involv-
ing a foreign target — even if the communication involved an American
sender or recipient. 180
Much of the legal reasoning that justifies the collection of phone records
(e.g., the general acceptance of “checkpoint searches” as being in accor-
dance with the Fourth Amendment), can also be used to justify PRISM’s
incidental collection of communications between Americans and those
across the border. In addition, the fact that these communications occur
at the cyber-equivalent of a border also could be used to justify this kind
of search. The Supreme Court has held that “searches made at the border,
pursuant to the longstanding right of the sovereign to protect itself by stop-
ping and examining persons and property crossing into this country, are
reasonable simply by virtue of the fact that they occur at the border.” 181 The
Court has similarly maintained that such searches without probable cause
are reasonable not just at the physical borders, but at the “functional equiv-
alents” of the border as well. 182 These searches are all justified by the fact
that the United States has an overriding interest, and authority, to protect its
“territorial integrity” as well as preserve national security. 183 More broadly,
the exception is based on the government’s “sovereign right to protect itself
184
from terrorist activities, unlawful migration, and contraband.” Whether
PRISM should be applied to dealing with acts other than terrorism is a very
weighty normative and legal issue that calls for a separate treatment that is
beyond the scope of this chapter.
The review so far suggests that PRISM is a legal and reasonable program.
This assumes that it is employed as depicted by the government. How to