Your privacy is protected --- unless they think they've found evidence of a crime.

Your privacy is protected --- unless they think they've found evidence of a crime.

by digby

It appears that most people have decided that the PRISM program is no big deal, just a necessary type of intelligence work that doesn't focus on American citizens (the standard for collection is based upon the analyst's 51% certainty that the person isn't American) and if it happens to catch one in the dragnet, it throws him back. The "minimization" process is supposed to safeguard the information being used for anything except its designated purpose.

So, here's the Washington Post's summary of the PRISM program. It's very clear and concise and pretty much explains that the NSA has outsourced its direct dealings with the Telcoms to the FBI, which I guess is supposed to make it all ok. The FBI gathers the data and ships it to the NSA.

But aside from the larger constitutional and philosophical issue with all that, here's the practical concern that makes me wonder:

If a target turns out to be an American or a person located in the United States, the NSA calls the collection “inadvertent” and usually destroys the results. If the target is foreign but the search results include U.S. communications, the NSA calls this “incidental” collection and generally keeps the U.S. content for five years. There are “minimization” rules to limit the use and distribution of the communications of identifiable U.S. citizens or residents. The NSA discloses the identities to other agencies if it believes there is evidence of a crime or that the identities are essential to understanding an intelligence report.

It's that last that strikes me as peculiar. What is to stop the NSA from "inadvertantly" or "incidentally" doing fishing expeditions on American citizens in search of evidence for crimes that have no relationship to terrorism? I can't see what could stop it.

You don't know what sort of crimes they might be interested in, but there is a whole lot of overlap these days between the War on Drugs and the War on Terrorism. And what one person considers a potential "crime" could be easily seen as civil disobedience by someone else. The risk of political spying is pretty high.

It's true that if the FBI wants to monitor you, it can probably find some judge somewhere to agree to a warrant and they can likely get this information legitimately. So maybe it's silly to worry about such a thing. But I can't help but remember that someone did this back in 2009:

The New York Times reports today that members of Congress are increasingly concerned about the extent of the NSA’s domestic surveillance program, particularly the overcollection of the private telephone calls and e-mail messages of Americans. An anonymous former intelligence analyst tells reporters James Risen and Eric Lichtblau that during much of the Bush years, the NSA “tolerated significant collection and examination of domestic e-mail messages without warrants.” Reportedly, one of the accessed domestic e-mail accounts belonged to former President Bill Clinton.

That was probably just some dude being nosy. But the ability to "accidentally" sweep someone up in a search, "find" a possible crime and then alert domestic authorities is very disquieting. One could easily see someone in authority doing such a thing under the belief that they are "protecting America" --- the mantra of the surveillance state.

This case always struck me as something that could easily have come about because someone with inside information pointed authorities in the right direction. In his case, Spitzer's primary enemy was Wall Street and the banking system so that's probably all it took. But you can certainly see the possibilities if members of the government find a good excuse to wade through all that personal information they're holding.


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