NSA Taken to Court Over Warrant-Free Surveillance

The ACLU announced this week that the NSA’s PRISM program, revealed by national security whistleblower Edward Snowden in 2013, will be reviewed in court. The PRISM program allows the NSA, as well as other U.S. intelligence agencies, to access U.S. citizens’ international emails, internet calls and chats without a warrant.

U.S. Government Taken To Court

Most of the post-Snowden-revelations lawsuits against the NSA have failed because the courts have said that the civil rights organizations, such as the ACLU, “don’t have standing” to sue the NSA. However, this time, the ACLU is helping an individual who claims to have been personally harmed by the NSA’s surveillance.

The U.S. government accused Agron Hasbajrami from Brooklyn of attempting to provide material support to a designated terrorist organization in Pakistan. After Hasbajrami pleaded guilty to one of the charges against him, the government admitted that it had been reading his emails illegally without a warrant.

Now, Hasbajrami is asking the Second Circuit Court of Appeals to throw out the tainted evidence. The ACLU has filed a brief in favor of Hasbajrami arguing that the government’s actions violated the Fourth Amendment when it exploited an American’s communications through the PRISM program.

PRISM’s Relationship With Tech Companies

Snowden revealed that a number of major technology companies, including Microsoft, Google, Yahoo, YouTube, AOL, Skype and Apple, were part of the PRISM program. He revealed that NSA was accessing emails, chats, video calls and other types of private content from these companies.

Back in 2013, PRISM was believed to be a program through which the NSA could gain direct access to those companies’ servers. However, all of the involved companies denied this at the time. The NSA supposedly uses secret FISA orders to request data that is normally encrypted from tech companies.

U.S. Government’s "Backdoor Searches"

The U.S. government has insisted that it uses PRISM and other similar programs, such as Upstream, to target foreigners’ communications. However, the government’s interpretation of that mission seems to be quite broad. Some Senators have criticized it in the past for being a “backdoor” into Americans’ private communications. The NSA has also admitted to including millions or tens of millions of people into such investigations, for instance, by intercepting all three-hop phone records.

This broad interpretation allows the NSA to capture and then access the internet data of virtually all Americans. A rule change by former U.S. President Barack Obama allowed the NSA to share this data with 16 other agencies, including the CIA, FBI, DEA and IRS.

The passing of the recent FISA extension codified the change into law and has given these agencies permission to read all Americans’ data that passes through the internet without a warrant. The law says that the government only needs to obtain a warrant after the fact and if it would like to use that data in court, long after the government could have used it to fish for crimes (something that, some could argue, is supposed to be banned by the Fourth Amendment).

Circumnavigating the Fourth Amendment?

The ACLU noted that FBI agents have already been running PRISM searches on captured data using only names and email addresses without first obtaining a warrant. The civil rights group believes allowing the government to have easy access to emails, chats and other personal communications without requiring an individualized warrant from a judge is an “end-run around the Fourth Amendment.”

On Monday, the ACLU plans to explain to a three-judge panel why the government should be required to seek a warrant before doing such searches in order to obey the Constitution.