The Ethics of NSA, CIA, and FBI Surveillance Programs

The Role of CIA, NSA, and FBI in National Security

The Central Intelligence Agency (CIA) conducts foreign covert operations, counterintelligence operations, and collects and analyzes foreign intelligence for the president and his staff to aid in national security decisions. The National Security Agency (NSA) is responsible for global monitoring, collection, and processing of information for foreign intelligence and counterintelligence purposes. The Federal Bureau of Investigation (FBI) conducts domestic counterintelligence and counterterrorism operations in addition to its role as the lead law enforcement agency in the country.

These three agencies have implemented sophisticated programs to capture, store, and analyze electronic communications. The Downstream program (formerly called PRISM) extracts data from the servers of nine major American Internet companies including AOL, Apple, Facebook, Google, Microsoft, Paltalk, Skype, Yahoo, and YouTube to obtain direct access to audio, video, photographs, emails, documents, and connection logs for each of these systems. The Upstream program taps into the infrastructure of the Internet to capture the online communications of foreigners outside the United States while their communications are in transit. The leaders of the intelligence agencies argue that these programs are essential to fighting terrorism. The agencies can also provide a dozen or more examples of how use of the data gathered by these programs has thwarted the efforts of terrorists around the world.

The programs are authorized by Section 702 of the FISA Amendments Act which authorizes surveillance of any foreigner overseas, provided the purpose is to obtain “foreign intelligence.” The Act loosely defines “foreign intelligence” to mean any information that “relates to” the conduct of foreign affairs. This broad definition means that the target being surveilled need not be a terrorist. The target needs only to be thought to have information that is relevant to the government’s foreign intelligence objective—whatever that may be.

The process of gathering foreign electronic communications necessarily means the incidental capture of many conversations involving an American (who may be here in the United States) and a foreign target. They may well be having a totally innocent communication with a foreign friend, relative, or business partner who is not suspected of any wrongdoing whatsoever. The total number of Americans’ communications “incidentally” collected since the inception of Section 702 is well into the millions.

Section 702 also allows the government to pool all the messages it intercepts into a giant database and then search the database, including conversations involving Americans— without a warrant. Warrantless surveillance of communications between Americans and foreigners is known as a “backdoor search” because it effectively evades other provisions of United States law that require an individualized warrant or court order for access to such data. The agencies are authorized to conduct unlimited warrantless backdoor searches of those communications for information about Americans or individuals located in the United States during any investigation. The agencies are only required to obtain a warrant to view American’s data if the investigation is not related to national security.