Understanding the Functioning of XKeyscore (NSA program)

After listening to some of Obama’s press conference and reaffirmation that the NSA has legal checks that prevent it from spying on Americans and violating the Constitution, I decided to look more deeply into the details of NSA programs myself to get unbiased information on how they function. I wanted to decide for myself, based on the facts alone, if these programs really are a threat to privacy and liberty.

Silly me, I forgot how complex reality is when you try to fully comprehend it, and how much easier it is to make decisions based on a weighing of your emotional attachment and trust in certain organizations’ or individuals’ opinions. I was tempted to share Obama’s confidence that the program struck the right balance between security and privacy, because I trust that he has good character and judgment, despite his decisions’ that I disagree with. I also felt a certain attachment to the journalists and commentators I follow on Twitter, and felt compelled to believe their accounting of the program’s as unchecked and invasive. This cognitive dissonance inspired me to undertake my objective analysis – I didn’t know which attachment to trust.

Reading through the Guardian’s description of the NSA’s XKeyscore surveillance program, I quickly became frustrated with the claims in the story which seemed to be contradictions, and only through several read-throughs became clear.

The two claims are juxtaposed in the article’s statement that:
“Under US law, the NSA is required to obtain an individualized Fisa warrant only if the target of their surveillance is a ‘US person’, though no such warrant is required for intercepting the communications of Americans with foreign targets. But XKeyscore provides the technological capability, if not the legal authority, to target even US persons for extensive electronic surveillance without a warrant provided that some identifying information, such as their email or IP address, is known to the analyst.”

The first statement, that searches of American individuals requires a warrant, seems to indicate that the program is indeed under appropriate legal restraints. Yet the second statement, and later assertions in the article, claims that  “analysts can use it [XKeyscore] and other systems to mine enormous agency databases by filling in a simple on-screen form giving only a broad justification for the search. The request is not reviewed by a court or any NSA personnel before it is processed.”

So, which is it? Do analysts have to get a warrant to monitor communications’ of US individuals, or not? This all seems to hinge on exactly what kind of legal justifications the analysts are allowed to enter for surveillance, how broadly the statutes they cite are being interpreted, and the independence and transparency of the FISA court. 

From a policy standpoint, I would like to see reform to the statutes that I suspect are being broadly interpreted to allow for massive leeway on surveillance. I would also like to see the FISA court become more adversarial and transparent, because it currently only hears the government position and is shrouded in secrecy. I was glad to hear Obama suggest both of these reforms in his press conference. However, at a deeper level, I’m unsettled in knowing how much information our government is collecting, and how much of these programs were being hidden. Obama says that he had already ordered a review of these programs, and that he trusted that he and Congress would’ve arrived at similar reform proposals even if Snowden’s had never illegally leaked information. That’s one major conterfactual, and flies in the face of the fact that the government hid the details of these programs and FISA decisions for years; why would we trust them to willingly reveal them, when they had the opportunity to do so for years and hadn’t done it?

In summary, I’m more confident that our surveillance programs have legal safeguards built in. However, I doubt that these legal safeguards are sufficient to protect pernicious and widespread surveillance, because we have laws that can be interpreted too broadly and a FISA court seems only to serve as a rubber stamp for the executive. Lastly, this whole ordeal has increased my conviction that our society needs whistleblowers like Snowden to prevent government abuses; he is indeed a patriot.

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