News Release

Surveillance “Reforms” Allow for Plenty of Suspicionless Spying on Americans

MARGO SCHLANGER, mschlan at umich.edu, @mjschlanger
Schlanger is the Henry M. Butzel Professor of Law at the University of Michigan, where she also heads the Civil Rights Litigation Clearinghouse. She served as the Officer for Civil Rights and Civil Liberties at the Department of Homeland Security in 2010 and 2011.

She recently wrote the piece “U.S. Intelligence Reforms Still Allow Plenty of Suspicionless Spying on Americans,” which states: “[Recently], the Obama administration released a report and documents cataloging progress toward signals intelligence (SIGINT) reform goals set a year ago by the president in a document known as PPD-28. PPD-28 promises foreigners some of the same privacy protections given to U.S. citizens and residents. But it turns out that those protections, even for citizens, are fairly meager, in ways that have not yet fully entered the public conversation about surveillance. U.S. citizens and residents have been — and remain — exposed to suspicionless electronic surveillance. Implementation of PPD-28 will do little to change that.

“To my mind, the surveillance I’m about to describe, which proceeds under Executive Order 12333, rather than FISA, is far more worrisome than the programs under Section 215 of the Patriot Act and Section 702 of the FISA Amendments Act that have received so much recent attention. …

“Thus, if its other constraints (wire or radio, domestic or overseas collection, etc.) are followed, FISA doesn’t address strategies that select what to collect based not on the identities of communication participants, but using other techniques — say, the words used in the communication, or whether the messages are enciphered. …

“The point is, so far as U.S. surveillance law is concerned, the NSA can, if it chooses, ‘collect [nearly] everything’ —  including your domestic phone calls and emails — so long as it does not select which communications to collect using the identity of a ‘particular, known’ communicant.”