Thursday, January 05, 2017 by Don Wrightman
Yahoo has secretly scanned its user’s emails at the instruction of a US spy agency. This is part of a big push by officials to loosen up the constitutional protections safeguarding Americans from arbitrary government searches.
The order came from the Foreign Intelligence Surveillance Court (FSIC), resulting from the governments drive to change the way we interpret the Fourth Amendment’s rights to secure people from unreasonable searches and seizures. The unifying idea aims to move the focus of US courts away from what qualifies as a distinct search, to what is reasonable overall.
The argument is based on the amount of data people make available about themselves, which can contain clues useful for authorities to disrupt attacks. If an automated program searches through all the digital data, it technically counts as a search. However, the push is to disqualify the automated programs from causing unreasonable harm. A human isn’t analyzing the data and using its findings to order more intrusive measures, so when the computer flags someone, further intrusion would be considered reasonable.
Because innocent messages are included in the initial data sweep, the attempt to grant law enforcement agencies and intelligence services access to scan large amounts of online data without a court order conflicts with the Fourth Amendment. Orin Kerr, a former federal prosecutor and law school expert on surveillance said “A lot of it is unrecognizable from a Fourth Amendment perspective,” Kerr continued. “It’s not where the traditional Fourth Amendment law is.”
Robert Litt, general counsel of the Office of the Director of National Intelligence (ODNI), argues that the legal interpretation of the Fourth Amendment needs to be adjusted to keep up with technological changes. “Computerized scanning of communications in the same way that your email service provider scans looking for viruses – that should not be considered a search requiring a warrant for Fourth Amendment purposes,” said Litt, who left his post on Dec 31.
Yahoo and the NSA both declined to explain the basis for the order and details are classified, however, Reuters reports that sources familiar with the matter claim it was aimed at isolating a digital signature for an individual or small team working on behalf of a foreign government who is frequently at odds with America. Could this have been a part of the efforts to prove Russia was involved with steering the course of the election?
The ODNI will soon disclose an estimated number of Americans who have had their electronic communications involved in online surveillance programs which were intended for foreigners. Let’s hope that number is very small. Meanwhile, the FISC’s reasoning to undermine the Fourth Amendment is heading into public courts, with the American Civil Liberties Union and the Electronic Frontier Foundation fighting on our behalf to curb the expansion of legalized surveillance in Congress and the courtrooms.