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New information this weekend gave a glimpse into the efforts made by the US to establish a broad network of surveillance around the world. Some of the efforts involve using a proxy telecommunications company to manage the information gathered by local telecom companies in foreign countries, creating internal corporate cells with access to foreign-owned fiber optic cables, and using unchallenged rulings from Foreign Intelligence Surveillance Courts (FISC) to broaden the NSA's powers.Brazilian newspaper O Globo and The Guardian published articles on Saturday alleging that the NSA was collecting and storing the e-mail and telephone records of millions of Brazilians through a program called FAIRVIEW. According to The Guardian, that program allows the US to partner with “a large US telecommunications company, the identity of which is currently unknown, and that US company then partners with telecoms in the foreign countries. Those partnerships allow the US company access to those countries' telecommunications systems, and that access is then exploited to direct traffic to the NSA's repositories.”The Guardian article referenced an earlier post from Der Spiegel, which reported similarly broad surveillance of Germany's citizens. According to Spiegel, “the NSA systematically monitors and stores a large share of the country's telephone and Internet connection data,” which constitutes “up to 20 million telephone calls and 10 million Internet data exchanges,” on normal days.Going to the source with “Team Telecom”Another Saturday article in The Washington Post put some of the US' international spying into perspective as well.While the details that it reported did not pertain to the FAIRVIEW program, they showed that the US has put pressure on foreign buyers of undersea fiber optic cable systems to allow the US to maintain access to the communications that pass through the cables.Specifically, the Post used fiber optic network provider called Global Crossing as an example. The paper reports that a decade ago, the originally American firm prepared to be sold to an Asian firm, but the US worried about losing the potential to tap into the network when necessary. This concern stalled the sale of the company for months while a team of lawyers from the FBI and the departments of Defense, Justice, and Homeland Security negotiated a deal with the new owners.These lawyers drew up an agreement in September 2003 called the “Network Security Agreement.” This publicly available document “became a model for other deals over the past decade as foreign investors increasingly acquired pieces of the world’s telecommunications infrastructure,” writes The Post. Today, the FCC is the enforcer of these security requirements during a network sale, using its own mob of lawyers, dubbed “Team Telecom,” to draw up lengthy agreements that allow the US to retain access to the information the flows over the cables.Global Crossing's agreement, for example, stipulates that surveillance requests had to be handled by US citizens with the appropriate clearance and “sworn to secrecy,” and that the firm had to have a “Network Operations Center” on US soil that could be accessed by government officials “with 30 minutes of warning.”The Post continues: QuoteThe agreements, whose main purpose is to secure the US telecommunications networks against foreign spying and other actions that could harm national security, do not authorize surveillance. But they ensure that when US government agencies seek access to the massive amounts of data flowing through their networks, the companies have systems in place to provide it securely, say people familiar with the deals.The article points out that cutting deals like this, between the US government and foreign firms, is made possible by the Committee on Foreign Investment in the United States (CFIUS), which was set up by Gerald Ford in 1975 to review business deals with the interests of national security in mind. While this information in not necessarily new, it still gives some context as to how US surveillance works when it comes to foreign-owned infrastructure.The secret supreme courtThe New York Times meanwhile, detailed “more than a dozen classified rulings” from the court sanctioned by the Foreign Intelligence Surveillance Act that broadened the power of the NSA to target suspects whose activities fall outside of terrorism and into the realms of “nuclear proliferation, espionage, and cyberattacks.” The article details a situation in which investigators would normally have had to get a warrant to view an e-mail attachment sent by an American citizen, but the NSA was allowed to collect it without that extra step because it thought the attachment contained a diagram pertaining to Iran's nuclear program.While the Times did not publish any of the rulings, it says that they are over 100 pages long and show that FISA court judges are redefining their roles by “regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.”The paper attributes this power in part to a decision made six years ago, which gave the FISA court judicial oversight of the US' surveillance activities. The New York Times continues: QuoteIn one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said. The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the NSA’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said. That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law—used to justify airport screenings, for instance, or drunken-driving checkpoints—and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. “It’s another way of tilting the scales toward the government in its access to all this data.”The secrecy of the FISA court is quite strict, and Ars documented a Supreme Court case in February 2013 in which American activists with foreign clients claimed that their communications were likely being scooped up in what they suspected was a dragnet surveillance operation authorized by the FISA court.Back then, Justice Samuel Alito called the fears “speculative” and said the activists didn't have a right to sue at all without proof that they were being spied upon
The agreements, whose main purpose is to secure the US telecommunications networks against foreign spying and other actions that could harm national security, do not authorize surveillance. But they ensure that when US government agencies seek access to the massive amounts of data flowing through their networks, the companies have systems in place to provide it securely, say people familiar with the deals.The article points out that cutting deals like this, between the US government and foreign firms, is made possible by the Committee on Foreign Investment in the United States (CFIUS), which was set up by Gerald Ford in 1975 to review business deals with the interests of national security in mind. While this information in not necessarily new, it still gives some context as to how US surveillance works when it comes to foreign-owned infrastructure.
In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said. The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the NSA’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said. That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law—used to justify airport screenings, for instance, or drunken-driving checkpoints—and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. “It’s another way of tilting the scales toward the government in its access to all this data.”
