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NSA, FBI Surveillance: Legally Justified?

By Brett Snider, Esq. on June 07, 2013 | Last updated on March 21, 2019

Much to the chagrin of privacy advocates, the NSA and FBI have been secretly surveilling U.S. Internet services and mining personal user data. Separately, the NSA has also been collecting phone records for an undisclosed period of time.

Using highly sophisticated software code-named PRISM, these government agencies have tapped directly into the servers of companies like Yahoo, Google, and Facebook to collect data domestically without a warrant, reports The Washington Post.

Collecting information from U.S. citizens without a warrant is generally illegal. But the USA PATRIOT Act and other laws passed by Congress are still alive and well in allowing surveillance under certain circumstances.

Protect America Act and FISA

The PRISM project was launched from the decaying framework of former President George W. Bush's domestic surveillance program which, although highly scrutinized and blasted by critics, was never completely dismantled, reports the Post.

The Protect America Act of 2007 was passed in order to amend the provisions of the Foreign Intelligence Surveillance Act (FISA), legislation which provided the legal backing and court authorization for much of the FBI and NSA's surveillance activities.

The 2007 Act, in addition to the FISA Amendments Act of 2008, reinvigorated FISA-based intelligence by protecting any "electronic communication service provider" from being sued by allowing their servers to be surveilled.

Companies Volunteered Data

Normally, to obtain data from a company like Google or Facebook (especially data that might be attached to personal email or user accounts), the government would need a warrant, signed by a judge and supported by probable cause.

However, it is alleged that up to nine major tech providers (including Yahoo, Microsoft, and Google) volunteered to give access to their data to the NSA, starting with Microsoft, which began cooperating with the PRISM project in 2007, according to the Post.

The Fourth Amendment protects those on U.S. soil from illegal searches from government actors. Still, it is legally ambiguous whether voluntary participation in government surveillance under FISA can be considered as acting as a government agent.

NSA Collects Verizon Phone Records

It has also been revealed that the NSA has been routinely collecting the phone records of Verizon customers without a warrant, reports Reuters.

Surprisingly, warrantless collection of phone records and location data has been done legally for decades, with "pen register" and "trap and trace" orders allowing government agents access to:

  • Customer names,
  • Customer addresses,
  • Telephone numbers,
  • Call routing information, and
  • The length of phone calls.

President Obama stated at a press conference Friday that "[y]ou can't have 100% security and then also have 100% privacy and zero inconvenience."

With the NSA and FBI peering into our Internet data and cell phone records, American privacy isn't as close to 100% as many might hope.

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