You've probably heard of Prism, the NSA's program to collect metadata like IP addresses and phone numbers. But a new lawsuit against the NSA from the Wikimedia Foundation and other media and human-rights organizations takes issue with another surveillance program, Upstream, which gathers far more detailed information. Bob talks with Stephen Vladeck, a professor of law at the American University Washington College of Law, and co-editor-in-chief of the Just Security blog.
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Bob Garfield: From WNYC in New York, this is On the Media. Brooke Gladstone is away this week, I'm Bob Garfield. We begin with National Security Agency eavesdropping on American citizens. And, no, this isn’t a rerun. You’re already probably aware of PRISM, which leaker Edward Snowden exposed as vacuuming up Americans’ IP addresses and phone numbers -- but, as the President protested in 2013, no actual conversations:
Barack Obama: they are not looking at people’s names, and they’re not looking at content.
It turns out, however, that the NSA is also gathering the content of conversations and other internet activity -- in a different electronic spying program. This one is the subject of a new lawsuit against the NSA, it's called Upstream surveillance, which monitors far more intimate information in searching for evidence of terroristic intent. Last week, the Wikimedia Foundation along with a half dozen media and human-rights organizations sued the government over Upstream, alleging infringement on privacy and free speech.
Stephen Vladeck, co-editor-in-chief of the blog Just Security, says the NSA has set up shop where it can see and hear everything.
Stephen Vladeck: The Upstream program basically has the government sitting as a traffic cop literally on the information superhighway, and intercepting traffic as it goes through specific servers and taking the information quote "upstream" unquote of when it enters the United States. And the key to the upstream program is that a lot of what the government is collecting is content.
Bob Garfield: And let's be clear with what we're talking about when we say content. We're talking about texts of emails, records of searching, browsing activity-
Vladeck: And perhaps even phone calls. But the government is supposed to take steps to eliminate, to not even look at, to not access, data collected through upstream, that they reasonably believe to involve US persons. One of the concerns that has arisen in the now 18 months since the Edward Snowden leaks, has been just how effective those procedures are to abate the Fourth Amendment harm of collecting that information in the first place. That's one of the questions this lawsuit is trying to raise.
Bob Garfield: Now I first read about this, about a week ago, in an op-ed by one of the parties to the suit, Jimmy Wales, founder of Wikipedia. And I went, wait, what? This is classic eavesdropping, including internet activity by Americans, from American soil, why are there not villagers massing in the streets with flaming torches?
Vladeck: So I think it's important to add a couple of caveats about the Upstream program. It's primarily targeted at non-citizens outside the United States. Reasonable people will certainly agree about the policy wisdom of, for example, spying on Egyptian democratic activists in Egypt, there's no question that at least under current law, those individuals don't have US constitutional rights, they don't have an expectation of privacy in those communications. But they way that the government is collecting this information upstream, it is simply inevitable that the government is also going to be collecting emails between me and friends of mine in Egypt and between lots of Americans and friends of theirs overseas in which at least US persons and non-US citizens lawfully present in the United States, have an unquestioned expectation of privacy.
Bob Garfield: There have been a lot of lawsuits, related to the PRISM program, and other NSA spying activities, is this one different, is this stronger, better?
Vladeck: I think from a constitutional perspective, this lawsuit is in some ways much more important than the ones that are already pending. In these other cases, in the suits challenging the PRISM program, and the suits challenging the bulk telephone records program, the basic claim is that the doctrines on which the government is relying are outdated, and need to be updated and adjusted for technological change. Here, the basic claim is that the doctrine clearly prohibits what the government has been doing. So in many ways, this is perhaps the biggest case, albeit one that has some procedural obstacles to surmount before we can get to that question.
Bob Garfield: If the lawsuit gets anywhere in the federal courts system, there's two pretty significant obstacles that you've identified. One is the question of standing. Jimmy Wales for example, and Wikimedia, the parent organization of Wikipedia, believe that their activity has been monitored by the government, but they can't necessarily prove it and they can't necessarily prove harm. Will they have standing for the purposes of being a recognized plaintiff?
Vladeck: That's the million-dollar question. There's a very important Supreme Court decision from two years ago called Clapper vs. Amnesty International. And at least before Snowden, and that's when the Clapper decision was handed down it was handed down in February of 2013, those plaintiffs could not show that surveillance of them was in fact certainly impending. The critical difference here is one PowerPoint slide that was released by Edward Snowden and that has Wikipedia as one of the internet sources that the government was going to use these programs to collect information from and about. The real question I think is going to be is whether a federal court thinks one PowerPoint slide that suggests what the government plans to do, is enough to prove what he has in fact done. Since there's no other evidence that these specific plaintiffs were subjected to Upstream collection.
Bob Garfield: One final thing, we're going to have Jimmy Wales on in a moment talking about the chilling effect that this has on American citizens. I have to mention a PEW Research Center survey which was just released, titled "Americans Privacy Strategies Post-Snowden." And it turns out that America isn't all that chilled, it's more like chill. 34 per cent, a third of Americans who had heard about the PRISM program, which is 90 per cent of the population, say that they have taken one step to protect themselves from government intrusion. Two-thirds have done nothing. Is this why there are no villagers in the streets with flaming torches? That America for the most part just doesn't care?
Vladeck: I guess I'm not yet convinced that that really is a global statement about all Americans, or whether that's just a reflection that there really are two different mentalities. There are the folks who either don't care about their privacy, or simply assume that any steps they take will be pointless, because the government will override them anyway, and there are the folks who care quite deeply about their privacy, but are increasingly finding it more and more expensive, more and more logistically burdensome, to protect that privacy in light of the known capabilities of the government. And at the end of the day, I have to say that as long as that second group is more than just a de minimis segment of the population, I think we all have a responsibility to support them. So I do think it is an undeniable trend that most Americans seem callously indifferent to privacy these days, but if anything that makes lawsuits like these even more important, because it suggests that it's going to be the courts and not the legislatures that are going to be the last bastions of real privacy protection in this digital day in age.
Bob Garfield: Steven, many thanks.
Vladeck: Stephen Vladeck is a professor of law at the American University Washington College of Law.
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