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RUNNING HEAD: NSA Policies and Privacy

NSA Policies and Privacy Bradley Wallace Strayer University Professor Nelson Stewart CIS-324 June 16, 2013

NSA Policies and Privacy

In 2006 USA TODAY reported that the National Security Agency (NSA) had been secretly collecting phone call records of American citizens. The purpose of this collection of phone records is to look for terrorist activity. I will evaluate how the collection of phone records lines up with the policies of the NSA and how those policies affect the average American citizens. I will also look into the legality of these collection methods. Lastly I will look into the privacy implications of the policies of the NSA. Origins of the NSA The National Security Agency was established on November 4, 1952 (Pre-1952 Historical Timeline, 2009). Prior to the NSA there was the Armed Forces Security Agency (AFSA). The ASFA was established on May 20, 1949 and was established to direct the communications intelligence and electronic intelligence activities of the military (The National Security Agency, 2000). The NSAs formation came after a report known as the "Brownell Committee Report," looked into the history of U.S. communications intelligence activities and discovered there was a need for greater coordination and direction at the national level in regards to intelligence activities (The National Security Agency, 2000). After the NSA was formed the realization that complete control over all intelligence activities would be impossible due to the dependence on the military structures to man field stations. To help mitigate this flaw operational and technical control over all intelligence activities was granted to the NSA (Burns, 1990). The NSA is a highly secretive organization that only in recent times has had any amount of information about them released. This is largely due to Congressional hearings and investigative research (The National Security Agency, 2000). The most recent exposure surrounding the NSA is the release of information that the NSA is collecting phone records of American citizens in an effort to look for terrorist activities.

NSA Policies and Privacy

NSA Role and Responsibilities The NSA is tasked with leading the U.S. Government in cryptology that includes Signal Intelligence, Information Assurance, and Computer Network Operations so that a decision advantage is gained for our nation and its allies in all circumstances (NSA/CSS Mission, Vision, Values, 2012). This process come about due to Executive Order 12333, which was originally issues in December of 1981 and later amended in July of 2008. Some of the roles and responsibilities of the NSA according to the NSA website include: (NSA/CSS Mission, Vision, Values, 2012). Collect (including through clandestine means), process, analyze, produce, and disseminate signals intelligence information and data for foreign intelligence and counterintelligence purposes to support national and departmental missions; Act as the National Manager for National Security Systems as established in law and policy, and in this capacity be responsible to the Secretary of Defense and to the Director, National Intelligence; Prescribe security regulations covering operating practices, including the transmission, handling, and distribution of signals intelligence and communications security material within and among the elements under control of the Director of the National Security Agency, and exercise the necessary supervisory control to ensure compliance with the regulations. This was later amended in 2008 to include: (NSA/CSS Mission, Vision, Values, 2012). Align EO12333 with the Intelligence Reform and Terrorism Prevention Act of 2004; Implement additional recommendations of the 9/11 and WMD Commissions;

NSA Policies and Privacy

Further integrate the Intelligence Community and clarify and strengthen the role of the DNI as the head of the Community;

Maintain or strengthen privacy and civil liberties protections. Legal Surveillance In 1975, a Congressional hearing revealed that for a minimum of 20 years the NSA had

been collecting international communications without a warrant which lead Congress to pass the Foreign Intelligence Surveillance Act (FISA) of 1978 (Cauley, 2006). FISA outlined the procedures that the U.S. government must follow when engaging in electronic surveillance with our without a warrant. Section 1801, subsection F of FISA defined electronic surveillance as the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes. (50 USC 1801 Definitions, 2012) Section 1801, subsection N of FISA further defined content as when used with respect to a communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication. (50 USC 1801 Definitions, 2012) Based off the definition of electronic surveillance defined in FISA it can be reasoned that the NSA is only able to obtain information if it is happening in real time and not based off of historical records. Being as how phone records collected in real time does not contain personally identifiable information the NSA would not be considered to be in violation of FISA. FISA established rules concerning the acquisition of information, either with a warrant or without a

NSA Policies and Privacy

warrant. In addition FISA authorizes the President to conduct electronic surveillance without a warrant for a period of one year provided the content of the information collected is between foreign powers, no information collected can be acquired when a U.S. citizen is involved, and the surveillance must meet the minimization procedures defined in Section 1801, subsection H (50 USC 1801 Definitions, 2012). Methods of Collecting Phone Records The common methods associated with collecting phone records are wiretaps, pen registers, and trap and trace devices. Wiretaps are defined as A concealed listening or recording device connected to a communications circuit. (The Free Dictionary, 2012) The purpose of a wiretap is to obtain information without the knowledge of the person or persons who are using that communications circuit. There are strict rules attributed to a wiretap starting with the federal wiretap statute passed in 1968. This statute requires that a wiretap order be obtained prior to the start of monitoring or recording of communications (Wiretapping Law Protections, 2012). It should also be noted that Under the Wiretap Act, although a wiretap order is needed to intercept your email and other electronic communications, only your oral and wire communications that is, voice communications are covered by the statute's exclusionary rule. So, for example, if your phone calls are illegally intercepted, that evidence can't be introduced against you in a criminal trial, but the statute won't prevent the introduction of illegally intercepted emails and text messages (Wiretapping Law Protections, 2012). Pen registers are defined as A device that decodes or records electronic impulses, allowing outgoing numbers from a telephone to be identified. (The Free dictionary, 2012). Trap and trace devices are defined as A device used to record and trace all communication signals from a telecommunication system. (The Free Dictionary, 2012). Typically pen

NSA Policies and Privacy

registers and trap and trace devices are used in conjunction with one another. Pen registers will shows outgoing phone numbers where a trap and trace device will show incoming phone numbers. The Supreme Court decided in 1979, in the case of Smith v. Maryland, that because you knowingly expose phone numbers to the phone company when you dial them (you are voluntarily handing over the number so the phone company will connect you, and you know that the numbers you call may be monitored for billing purposes), the Fourth Amendment doesn't protect the privacy of those numbers against pen/trap surveillance by the government. The contents of your telephone conversation are protected, but not the dialing information. (Pen Registers and Trap and Trace Devices, 2012). In 2001 the Patriot Act was passed with the express purpose of being used to combat terrorism. Under the Patriot Act the prerequisite that government prove that the suspect is an agent of foreign power is eliminated (The Free Dictionary, 2012). The result of this allows the U.S. government to use pen registers and trap and trace devices without having to obtain permission prior to use regardless of who the devices are to be used one be it a foreign national or a U.S. citizen. Ethics of Collecting Citizen Phone Records Collecting phone records from private citizens without probable cause is ultimately protected by the 4th Amendment which states The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (The United States Constitution, 2011). And due to this protection when USA TODAY reported that the NSA was collecting phone records concerning American citizens and claiming to use that information to fight terrorism the American Civil Liberties Union (ACLU) filed a

NSA Policies and Privacy

lawsuit against the federal government. The ACLU lawsuit was but one of numerous that was filed against the federal government. The ACLU lawsuit originally succeeded when a district court declared the NSAs collection of phone records was deemed unconstitutional; however in 2007 the original decision was overturned ("ACLU v. NSA: The Challenge to Illegal Spying, 2012). In 2008 the FISA Amendment Act was passed by Congress which effectively killed all litigation against the federal government in regards to the NSA collecting phone records about private citizens. The FISA Amendment Act granted immunity to organizations that aided the NSA in the collection of phone records for the database that was created to fight terrorism. The issue at play with the federal government using the NSA to secretly collect phone records of its private citizens is it violated the constitutional rights of U.S. citizens covered by the 4th Amendment. In response to the lawsuits that prevailed against the federal government for violating the constitutional rights of it citizens the FISA Amendment Act was passed. Since the act effectively killed all litigation the actions of the NSA became legal. While the monitoring of communications of U.S. citizens has been given greater latitude it is not something that should be carried out without probable cause as dictated in the 4th Amendment. Privacy Implications Since in recent time the federal government has passed laws that allow its agencies to essentially spy on it citizens privacy can no longer be taken for granted. As a security conscience citizen efforts should be made to ensure privacy is maintained in all facets of everyday life. When using the telephone or cell phone ensure to be mindful of your surroundings and take care in what is said via conversations or messages when using those devices, when using e-mail or surfing the internet the same considerations should be taken as well. With the increase of not only unscrupulous people trying to obtain information about a

NSA Policies and Privacy

persons life, but the federal government becoming involved in monitoring average U.S. citizens it is up to everyone to be security conscious and ensure that personal information remains personal. Conclusion In conclusion the NSA technically violated the 4th Amendment rights of U.S. citizens by collecting phone records in an effort to fight terrorism. With the advent of lawsuits being filed against the federal government the FISA Amendment Act was passed to make the actions of the NSA legal and be able to avoid litigation at the same time. There is a need to ensure the safety of citizens and one could argue that the actions of the NSA are achieving just that. The biggest problem is at what cost. The 4th Amendment ensures that U.S. citizens are free from unreasonable search and seizure against themselves and the current actions of the federal government violates this amendment. With that being said in an effort to protect the greater good some liberties must be given up. The question is just how much must be sacrificed to ensure the safety of society. This is sure to be a question that will be answered over the coming years.

NSA Policies and Privacy References 50 USC 1801 - Definitions. (n.d.). Cornell University Law School. Retrieved June 9, 2012, from http://www.law.cornell.edu/uscode/text/50/1801 ACLU v. NSA: The Challenge to Illegal Spying . (n.d.). ACLU. Retrieved June 8, 2012, from http://www.aclu.org/national-security/aclu-v-nsa-challenge-illegal-spying Burns, T. L. (n.d.). The Origins of the National Security Agency 1940 - 1952. National Security Agency. Retrieved June 8, 2012, from http://www.nsa.gov/public_info/_files/cryptologic_histories/origins_of_nsa.pdf Cauley, L. (2006, May 11). NSA has massive database of Americans' phone calls . USA TODAY. Retrieved June 8, 2012, from http://www.usatoday.com/news/washington/2006-05-10-nsa_x.htm NSA/CSS Mission, Vision, Values. (n.d.). NAtional Security Agency. Retrieved June 9, 2012, from http://www.nsa.gov/about/values/index.shtml "Pen Registers" and "Trap and Trace Devices". (n.d.). Surveillance Self- Defense. Retrieved June 9, 2012, from https://ssd.eff.org/wire/govt/pen-registers

Pre-1952 Historical Timeline. (2009, January 15). National Security Agency. Retrieved June 8, 2012, from http://www.nsa.gov/about/cryptologic_heritage/center_crypt_history/pre_1952_timeline/index.shtml The Free Dictionary. (n.d.). Retrieved June 9, 2012, from http://thefreedictionary.com/wiretaps The National Security Agency. (2000, January 13). George Washington University. Retrieved June 8, 2012, from http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB23/ The United States Constitution. (2011, March 6). US Constiution Online. Retrieved June 9, 2012, from http://www.usconstitution.net/const.html Wiretapping Law Protections. (n.d.). Surveillance Self-Defense. Retrieved June 9, 2012, from https://ssd.eff.org/wire/govt/wiretapping-protections