The way in which the US government carries out its surveillance and investigation programs on electronic communications is dictated by three laws. They are FISA, which stands for Foreign Intelligence Surveillance Act, The USA PATRIOT (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act and The USA FREEDOM Act, which is short for Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection and Online Monitoring Act.
FISA was enacted in 1978, way before Internet became a global phenomenon. It focuses on physical and electronic surveillance of mainly foreign organizations and agents. The Patriot Act was enacted in the aftermath of the terrorist attacks that took place on September 11th, 2001. In essence, it was an amendment to FISA and it extended surveillance to individuals, even if they don’t have direct links to terrorist groups. Although the most controversial parts of the Patriot Act expired in 2015, they were renewed through the Freedom Act. Here we will go through the main aspects about these pieces of legislation to help you to understand how they affect your privacy.
FISA or The Foreign Intelligence Surveillance Act was enacted in 1978 and it establishes the way in which foreign powers and agents (including US citizens and permanent residents believed to be involved in terrorism or espionage) are monitored. FISA provides judicial and congressional oversight of spying activities by intelligence agencies on foreign organizations and US citizens that could be collaborating with them. One of the main aspects of FISA is that it removed the requirement to have a court order to spy on foreign powers. While judicial authorization is needed to spy on a US citizen. it is only needed within 72 hours after the spying activities have already started. In order to use FISA, a government agency would need to have good reason to believe that the subject is a foreign power or an agent working for a foreign power. FISA provides guidelines for electronic and physical surveillance including phone tapping, access to business records, searches and more.
Signed into law by George W. Bush just a few weeks after 9/11, the Patriot Act or the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism, covers a wide range of subjects such as border security, funding for counter-terrorism and surveillance. With the Patriot Act, the surveillance permitted under FISA was greatly expanded. It was established that foreign intelligence information could be obtained from Americans, as well as foreigners. With the Patriot Act, it was not necessary to prove that a target was an agent of a foreign power in order to spy on them. The length allowed for surveillance was also extended. Surveillance orders and warrant for terrorism investigations could be issued by any district judge in the United States. Wiretapping included online and electronic communications. The power granted to law enforcement to carry out surveillance and obtain information even without someone’s consent, was increased under the Patriot Act. A wider range of data could be required from more sources, including individuals that were not linked to terrorist organizations.
While the most concerning parts of the Patriot Act were meant to expire in 2015, the Congress passed The USA Freedom Act, just one day before this happened. Many of the expiring aspects of the Patriot Act were extended to 2019 under the Freedom Act. However, some new limits were added regarding mass surveillance on US citizens’ telecommunication metadata. The limits were a response to the public outrage caused following Edward Snowden’s leaks regarding the NSA’s mass surveillance programs. In general, privacy experts agreed that the surveillance situation in the United States, didn’t dramatically changed under the Freedom Act.
Surveillance authorized under FISA, the Patriot Act and the Freedom Act
The ability of the government to check records of the activities of individuals was expanded and private property could be searched without the knowledge of the owner. Under FISA, the Patriot Act and the Freedom Act, physical searches and telecommunication surveillance are authorized. The latter includes accessing emails, text messages and VoIP calls. Libraries, universities and Internet Service providers can be forced by the FBI to provide information about their customers, and even doctors may be asked to hand over records of their patients. Sneak-and-peak warrants, national security letters and roving wiretaps are some of the most controversial aspects of the Patriot Act.
Dangers of the Patriot and Freedom Acts to privacy
The First Amendment of the US constitution guarantees freedom of speech, but under the Patriot Act, authorities can prevent the recipients of a search from telling other people about it. In addition, the FBI has the ability to authorize investigations of US citizens who are reading a particular book, or writing blogs about certain subjects. exercising their freedom of speech. The legislation also goes against the Fourth Amendment of the constitution, which states that the government can’t carry out a search without a warrant and probable cause.
Since law enforcement doesn’t need to provide notice to the recipient of a warrant before searching their property, the stipulation on the Forth Amendment are severely affected by the patriot and Freedom Acts. Apart from going against the constitution, FISA, the Patriot Act and the Freedom Act are dangerous to privacy and freedom, given the great amount of unrestricted power that is granted to law enforcement. In addition, the government hasn’t provided any substantial proof of the effectiveness of the Patriot and Freedom Acts when it comes to preventing terrorism. Although originally, this was the main objective of the legislation, it has been mainly used in drug related cases.
How do US government agencies use the Patriot and Freedom Acts
The NSA used the Patriot Act to explain the massive collection of phone records for millions of US citizens. The Freedom Act is meant to set up some limits that ensure that those who are targeted have links to terrorist groups. Under the Patriot Act, the NSA was able to force telecommunication companies to provide private information and the legislation established that the recipient of the warrant couldn’t talk about the warrant with anyone else. These gag orders were removed by the Freedom Act.
The FBI has the ability to search phones, emails and financial records without the need of a court order. They also gained access to a wider range of records, including financial details. While the CIA focuses on foreign powers, the Patriot Act allows this agency to gather information on US citizens. They can access financial information, telephone conversations, internet activity and more. A court order is not required for the FBI and the NSA to share information with the CIA. Under the Patriot Act, the head of the CIA can manage the collection of intelligence information gathered in the United States.
We previously mentioned metadata and it is likely that you come across this term whenever surveillance is discussed. Metadata refers to the information about the content, but not to the contents of the data itself. In the context of the Patriot Act, metadata is the information gathered through the NSA’s bulk surveillance program, which is mainly call records. The NSA claims that the calls themselves are not collected or analyzed and that instead, it only accesses the call metadata. This means that it doesn’t listen to a call, but it keeps records of the time, the callers, the devices used, the location and other details. Call metadata is collected from the general public, and not only from those who are linked to terrorist organizations. PRISM was the NSA’s major metadata collection program. When talking about online surveillance, metadata can include IP addresses, timestamps, browser signatures and email addresses. Metadata doesn’t refer to the content of online communications or internet traffic.
How to protect yourself from government surveillance
In order to protect your privacy against the online spying carried out by government agencies, you will need to address different areas. The main thing to keep in mind is that encryption is crucial. Encryption prevents others from accessing your online communications or activities. When encryption is applied, your online traffic, emails and other communications are scrambled, which means that third-parties won’t be able to read their content. Using a VPN is a solid solution as it will protect your online data including all the traffic that leaves and enters your device. Your internet traffic is routed through a secure server in the location of your choice. The encrypted tunnel cannot be traced or compromised by third-parties.
Tor is another solution that is worth considering and it is available for free, It is an anonymous network run by volunteers and it aims to help users around the world to defeat censorship and browse the internet and communicate securely. One thing to keep in mind is that Tor is considerably slower than a VPN service and it is also less versatile. A VPN doesn’t only add a layer of security and anonymity to your connection, it also allows you to bypass geographical blocks in order to access content (including media content) that is not available in your location.