One of the points we've made throughout this discussion on the revelations around widespread NSA surveillance is that if you had been paying attention, none of this should have come as a surprise. It's just the confirmation of the exact issues that people raised. In 2007, when Congress passed the "Protect America Act," some people quickly pointed out that it massively expanded warrantless surveillance with little oversight:

But the hastily-enacted legislation, dubbed the Protect America Act, does more than permit the interception of foreign-to-foreign communications. It permits warrantless surveillance "directed at a person reasonably believed to be located outside of the United States." There is no language specifically restricting surveillance activities to communications originating outside of the United States.

And then, a year later, we got the FISA Amendments Act (FAA), which raised more concerns:

In passing the FISA Amendments Act, Congress gave the executive branch the power to order Google, AT&T and Yahoo to forward to the government all e-mails, phone calls and text messages where one party to the conversation is thought to be overseas. President Bush signed the bill into law Thursday morning, describing it as a bill that "protect[s] the liberties of our citizens while maintaining the vital flow of intelligence."

Of course, last year, the FAA was up for renewal and we spent a lot of time discussing how folks in the House and the Senate (1) pretended that it only applied to foreign calls (when it clearly did not) and then (2) ignored Senators Wyden and Udall, who repeatedly made it clear that the law was being abused in this way, and asked others in Congress to demand a full and public accountability.

And, of course, the nefariousness here is not a partisan issue. Both of the laws above were signed by President Bush, and while President Obama campaigned on the fact that he would end such practices, we can safely say that that never happened.

So, while it's good that people are now realizing just how widespread the spying is, perhaps next time, when the same group of folks raise the alarm at these bills, they shouldn't be ignored or brushed off to the side as "oh you guys again..."

What's always been suspected has now been proven true: the NSA is indiscriminately harvesting the phone records of millions of Americans. Various whistleblowers have pointed out that the NSA's hunger for data has driven it to collect anything and everything it can, without having to submit to limitations placed on other agencies. Domestic surveillance is a full-time job for the NSA, and this order obtained by the Guardian spells it all out in unredacted black and white.

The order... requires Verizon on an "ongoing, daily basis" to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries.

The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing...

Under the terms of the blanket order, the numbers of both parties on a call are handed over, as is location data, call duration, unique identifiers, and the time and duration of all calls. The contents of the conversation itself are not covered.

This order was granted by the secret FISA court, allowing the FBI to collect this data until July 19th, with another copy going to the NSA. This sort of thing isn't necessarily new or unusual (large scale data collection like this began during the Bush presidency, as Greenwald points out), but this particular request's scope is rather breathtaking.

The unlimited nature of the records being handed over to the NSA is extremely unusual. Fisa court orders typically direct the production of records pertaining to a specific named target who is suspected of being an agent of a terrorist group or foreign state, or a finite set of individually named targets.

This order has no target. It just wants everything. Every Verizon subscriber is included in the NSA's data dragnet. And while there's a lack of individual specificity in the data Verizon is ordered to produce, there are several ways the information collected can be manipulated and abused.

The information is classed as "metadata", or transactional information, rather than communications, and so does not require individual warrants to access...

While the order itself does not include either the contents of messages or the personal information of the subscriber of any particular cell number, its collection would allow the NSA to build easily a comprehensive picture of who any individual contacted, how and when, and possibly from where, retrospectively...

Privacy advocates have long warned that allowing the government to collect and store unlimited "metadata" is a highly invasive form of surveillance of citizens' communications activities. Those records enable the government to know the identity of every person with whom an individual communicates electronically, how long they spoke, and their location at the time of the communication.

A year ago, the NSA claimed it couldn't say how many Americans it had spied on illegally because doing so with violate the privacy of those it spied on. Now, we can make an estimate: 98.2 million Verizon customers as of Dec. 2012. And that's just Verizon. There's no reason to believe other carriers haven't received (and submitted to) similar orders and past events indicate the NSA has been spreading its net wide for several years. And, of course, thanks to a whistleblower literally showing up at the front door of the EFF, we know that AT&T has basically helped set up direct access for the NSA on its network in the past as well.

The NSA, as part of a program secretly authorized by President Bush on 4 October 2001, implemented a bulk collection program of domestic telephone, internet and email records. A furore erupted in 2006 when USA Today reported that the NSA had "been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth" and was "using the data to analyze calling patterns in an effort to detect terrorist activity."

With this document exposed, the NSA can no longer pretend (if it's even bothering to at this point) its data collection efforts are targeted. It long ago turned away from its original mandate -- foreign surveillance only -- and now appears to be harvesting vast amounts of data on US citizens simply because no one's going to stop it.

For the second year running, all snooping-on-citizens requests have been granted by our nation's most secret court, the United States Foreign Intelligence Surveillance Court.

A secretive federal court last year approved all of the 1,856 requests to search or electronically surveil people within the United States “for foreign intelligence purposes,” the Justice Department reported this week.

The 2012 figures represent a 5 percent bump from the prior year, when no requests were denied either.

This surveillance was supposed to be limited to American citizens in contact with entities outside of the United States, but requesters found that adding the words "Al Qaeda" into the mix allowed eavesdropping on email and phone calls that never leave the country. This being a secret court, one running without oversight and immune from lawsuits, it seems operatives can request pretty much anything and have it approved. It's the ultimate rubber stamp process and one that can be asked for after the fact. Even a still-theoretical rejection can't slow down the spying.

The legislation does not require the government to identify the target or facility to be monitored. It can begin surveillance a week before making the request to the secret court, and the surveillance can continue during the appeals process if, in a rare case, the spy court rejects the surveillance application.

On the bright less oppressively gloomy side, there has been a slight reduction in National Security Letters, those wonderful sheets of paper law enforcement and security agencies use to compel pretty much any business (ISPs, banks, credit agencies, etc.) to hand over as much data on the named citizen as possible.

The same Justice Department report this week said the government issued 15,229 National Security Letters last year, down from 16,511 in 2011.

We'll have to see how much this number tails off in 2013 considering a federal judge ruled these letters unconstitutional in March. There's no reason to stop writing these letters quite yet, though. The ruling has been stayed for 90 days pending the administration's appeal. Given the track record of this administration (and the last), one would expect these letters to live a full, healthy (and unconstitutional) life, perhaps revived by an Executive Order or some sort of "national safety/security" exemption.

On top of the usual concerns about increased surveillance of American citizens is the fact that this 2-page "report" gives us no useful information about whether all of this spying is actually having any impact in the War on Terror.

As an instrument of public oversight, the annual reports on FISA are only minimally informative. They register gross levels of activity, but they provide no measures of quality, performance or significance. Neither counterintelligence successes nor failures can be discerned from the reports. Nor can one conclude from the data presented that the FISA process is functioning as intended, or that it needs to be curbed or refined.

The less data there is available, the fewer questions there are to answer. Right now, there's plenty of questions, but until the courts force the issue (a route that doesn't look terribly promising, despite the recent decision on National Security Letters), these questions can be safely ignored.

It's kind of sad that anyone could possibly think that it's okay for the government to have secret interpretations of the law in a free and open society. "The law" is more than just the legislation itself, but the collection of caselaw and interpretations, combined with the legislation, that make up the overall "law." If some of those interpretations are kept secret, then how can the public obey the law? The answer is that they can't -- which is why secret interpretations shouldn't be allowed. The Justice Department, however, prefers to keep some things secret, and it's asking the court to dismiss a lawsuit filed by the EFF seeking to find out how the Foreign Intelligence Surveillance Court is interpreting parts of the FISA Amendments Act, after it was revealed (late on a Friday) that the court found at least one situation in which the feds collected info in violation of the 4th Amendment.

The EFF figured the public should know the details. The DOJ on the other hand... would rather the public stay in the dark. The DOJ actually suggests that merely revealing the fact that they got slapped down by the FISC provides enough "balance."

Last summer, in an effort to strike the right balance between government transparency and the protection of critical intelligence activities, the government declassified four statements concerning its activities pursuant to Section 702 of the Foreign Intelligence Surveillance Act (“FISA”) Amendments Act of 2008. Not content with that disclosure, Electronic Frontier Foundation (“EFF” or “Plaintiff”) submitted a Freedom of Information Act (“FOIA”) request seeking additional information related to two of the declassified statements, specifically, that on at least one occasion the Foreign Intelligence Surveillance Court (“FISC”) “held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment” and that “on at least one occasion the FISA Court has reached th[e ] conclusion” that “the government’s implementation of Section 702 of FISA has sometimes circumvented the spirit of the law.”

And thus, we should be satisfied with that and want no more. Also, you don't want to know what kind of hell would break loose if the DOJ had to reveal how the law was actually interpreted. I mean, we'd all die or something very close to it, judging by the DOJ's language.

The government has determined that disclosure of the information withheld from Plaintiff could result in exceptionally grave and serious damage to the national security. Plaintiff obviously cannot contend otherwise. The Court accordingly should defer to the government’s determination in this case, uphold the Department’s withholdings, and grant this motion.

Basically, we've determined that you're all better off not knowing this information, and you should trust us because it's not like we have any incentives to lie (though, of course, we do). Also: boo!

Thankfully, more people are realizing just how ridiculous this is. The Washington Post has put out an editorial slamming the DOJ for its position:

Yet, as the amicus brief points out, the OLC’s opinions aren’t some intermediary step toward establishing the final legal interpretations for the executive branch. In general, they are the final legal interpretations for the executive branch. The FBI could choose to exercise the authority that the OLC said it had — or not — but Congress, the judiciary and the public at large all deserve to know what the executive branch thinks it can do, once it issues a conclusive opinion.

In other words, it's not right that the government can determine its own secret interpretations of the law, and it's time for the courts to put a stop to this.

As we've covered over and over again, the US government has made it clear that it wants access to your data. With things like the FISA Amendments Act, ECPA and various other laws, law enforcement plays the FUD card repeatedly, insisting that it needs to be able to go in and see data to "protect" the public. There's very little basis to make this claim. And, worse, by decimating online privacy, the US government may actively be driving business outside of the US to foreign countries that have stricter privacy laws that actually protect data from government snooping.

Many foreign companies are converging toward a common argument for why they’re better than their American competitors. It’s not that the foreign-made technology is better, more resilient, or more ubiquitous, nor that the foreign companies are more innovative or better managed. They compare not their businessmen but their politicians. They argue simply that American laws undermine any American product — that these laws fail to protect privacy of personal or business information of all users. This argument works partly because consumers claim to “avoid doing business” with companies they don’t trust to protect their privacy.

Basically, because law enforcement believes it needs to build a much bigger haystack as it searches for needles, we're handing other countries a key selling point in setting up services to compete with US services: "you can't trust any service based in the US, because it's subject to government surveillance." That may be a bit of an exaggeration, but I know I've see a number of companies lately who advertise the fact that they're not based in the US to suggest that they're more secure and can keep your data private. This is not the reputation the US needs or wants right now.

We've talked about the absolute ridiculousness of having a secret interpretation of a US law on surveillance such that the law actually means something different than what most people (including the politicians voting on it) think it means -- and yet the secret law remains in place for entirely secret reasons. The EFF, as part of an ongoing dispute over all of this, had submitted a Freedom of Information Act (FOIA) request concerning some testimony on that secret interpretation, and it got back a "relevant" document... which as almost entirely redacted. Here's a sample page. Much of it is blocked as "non-responsive" but the "responsive" section is basically entirely blacked out. The only text of the entire document that's available (other than the cover page) is:

The Government has provided copies of the opinions and the filings by the Government to this Committee, and the Government will continue to inform the Committee about developments in this manner.

It's ridiculous to continue arguing -- as Senator Dianne Feinstein has done repeatedly -- that there is no secret law here. She's being deliberately misleading, confusing "the law" with "the legislation." The legislation is the text as written by the legislature, but "the law" includes specific rulings by courts on the legislation. The legislation may be public, but the law is not when the rather important interpretations of the legislation remain completely redacted.

The folks over at the CATO Institute have put together a short five minute video on the rush by the federal government to renew the FISA Amendments Act, with no changes, which effectively has sanctioned warrantless wiretapping on millions of Americans. Even though the plain language of the bill suggests it only should be used on foreigners, it's become clear that thanks to weasel language in the bill, and a "secret" interpretation by a secret court, the definition of "targeting" foreigners has been interpreted to mean any communication that might possibly somehow shed light on some sort of illegal activity that might possibly maybe involve foreigners sometimes in some manner. As such, it seems likely that the NSA, in particular, has used this bill and its secret interpretation to sweep up huge databases of information about Americans, even as most people (including many in Congress) believe the bill only is used to spy on foreigners. The video is especially worth watching for the brief segment involving Senator Dianne Feinstein, who was the main supporter of extending these rules, responding to Senator Wyden's amendment that sought to have the NSA provide an estimate -- just an estimate -- of how many Americans had their information swept up by the NSA in its dragnet. Feinstein insists that there's a secret reason for why this information needs to be kept secret -- and promises to wave the piece of paper around (if someone hands it to her) that contains the secret reason that she can't tell us.

So, if you're keeping track at home, we've got a bill with plain language that most people incorrectly believes means that it only involves collecting data on foreigners. But thanks to a secret interpretation, it's almost certainly being used to collect tons of data on Americans, which is being kept secret. Furthermore, the NSA claims that it must keep secret whether or not it even has an estimate of how many Americans' have had their data sucked up by this secret program because of, well, a secret reason.

Does that actually make anyone feel safer?

Reason has a great (if disappointing) post noting the very different reactions from both the press and the public to silly and exaggerated stories about privacy issues around Facebook as compared to the Senate reapproving the FISA Amendments Act, which has almost certainly allowed massive surveillance of and collection of data and communications from millions of Americans. You'd think the latter would deserve more attention, but nope.

There's currently nothing on the New York Times web site about the votes (either yesterday's or today's). The Associated Press wrote a story about the House's vote in September but nothing yet from yesterday or today. The Washington Post did post a story this morning. A Google news search will land hits with mostly tech or web-based media outlets.

Compare the lack of response to the way people react to privacy breaches connected to Facebook or Twitter. Media outlet after media outlet carried reports about a private picture of Randi Zuckerberg, Facebook founder Mark Zuckerberg's sister, accidentally being made public somehow through social media channels. And how many of your Facebook friends posted that silly, pointless "privacy notice" on their walls?

The post, by Scott Shackford, notes that you can't just blame the media for failing to cover the FISA Amendments Act votes -- they're just responding to what the public wants. And because Facebook seems more "real" to people than the NSA recording all their info, it seems to hit closer to home, even if one is a real abuse of privacy, and the other isn't.

The degradation of the Fourth and Fifth Amendments is an academic or theoretical matter for so many people and often lacks a strong human narrative to draw public outrage. Indeed, the very secrecy behind the application of federal domestic wiretapping has made it impossible to introduce a human narrative. We do not even know how many Americans have been spied on due to these rules (which was what Wyden's amendment was trying to fix). Like our foreign drone strikes and indefinite detention laws, the public's distance from the actual rights violations (and government-fueled fears of acts of terrorism) is a useful barrier for the state to get away with expanding its authority beyond the Constitution's limitations without significant voter pushback.

Whereas, just about everybody's on Facebook. Facebook's privacy systems affect them directly every day, and they see it. So Americans are furious that Instagram might sell their photos, while shrugging at what the federal government might do with the exact same data.

As he points out, this is why it's been so important for the government to keep the details of its spying program a secret. If people realized that the government really was sweeping up all sorts of data, they might realize that this directly impacts them too. But, that's all secret.

After three key amendments that would have brought some oversight to the NSA's ongoing spying program were rejected last night, and the final such amendment was rejected this morning, there was little doubt that the Senate would move ahead with renewing FISA in its current and highly problematic form. Immediately following the rejection of the Wyden amendment, that's just what they did, voting 73-23 to extend FISA for another five years.

There was never really any chance of FISA not being renewed, but the proposed amendments would have added vital checks to the law, most of which seemed to be just common-sense—such as requiring a report to Congress on the program's privacy impact. With all these changes rejected, the renewal means another five-year virtual carte blanche for the NSA to collect data on US citizens under a secret interpretation of the law that the public is not allowed to see, without even providing an estimate on how many Americans have had their privacy violated.

Yesterday, we covered the rushed last-minute debate over the FISA Amendments Act, after which three critical amendments that would have brought some accountability to the NSA's spying program were all struck down. This morning, the fourth and final such amendment from Senators Wyden and Udall was also rejected, in a vote of 52 to 43, meaning FISA will now move forward in its current (and likely unconstitutional) form.

What was in the Wyden-Udall amendment? Even according to the White House's leaked talking points, which were strongly opposed to the amendments, it sounds like something that just makes sense:

What the Amendment Does: Requires the DNI to submit a report to Congress and the public on the impact FAA and other surveillance authorities have on the privacy of United States persons.

As Wyden has pointed out in the past, and re-iterated during debate this morning, not only is Congress unable to get an estimate from the NSA on how many American citizens have been spied on through FISA, he is unable to even get a yes or no answer as to whether such an estimate exists. Considering FISA is supposed to be subject to Congressional oversight, this seems like a pretty big problem, and one worth fixing before renewing the program for another five years. Instead, the Senate voted to wash its hands of the issue, despite solid evidence that the NSA is engaged in widespread spying on US citizens and at least one known instance in which the 4th Amendment was violated. So much for checks and balances.

Update: As expected, immediately following the rejection of this amendment, the Senate voted to extend FISA for another five years.