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national security agency
ACLU Sues to Uncover 'What the NSA Is Hiding' About Its Use of Artificial Intelligence
"AI tools have the potential to expand the NSA's surveillance dragnet more than ever before," the civil liberties group warned.
Apr 26, 2024
The ACLU on Thursday sued the National Security Agency in an effort to uncover how the federal body is integrating rapidly advancing artificial intelligence technology into its mass spying operations—information that the agency has kept under wraps despite the dire implications for civil liberties.
Filed in a federal court in New York, the lawsuit comes over a month after the ACLU submitted a Freedom of Information Act (FOIA) request seeking details on the kinds of AI tools the NSA is using and whether it is taking any steps to prevent large-scale privacy abuses of the kind the agency is notorious for.
The ACLU said in its new complaint that the NSA and other federal agencies have yet to release "any responsive records, notwithstanding the FOIA's requirement that agencies respond to requests within twenty working days."
"Timely disclosure of the requested records [is] vitally necessary to an informed debate about the NSA's rapid deployment of novel AI systems in its surveillance activities and the safeguards for privacy, civil rights, and civil liberties that should apply," the complaint states, asking the court for an injunction requiring the NSA to immediately process the ACLU's FOIA request.
In a blog post on Thursday, the ACLU's Shaiba Rather and Patrick Toomey noted that AI "has transformed many of the NSA's daily operations" in recent years, with the agency utilizing AI tools to "help gather information on foreign governments, augment human language processing, comb through networks for cybersecurity threats, and even monitor its own analysts as they do their jobs."
"Unfortunately, that's about all we know," the pair wrote. "As the NSA integrates AI into some of its most profound decisions, it's left us in the dark about how it uses AI and what safeguards, if any, are in place to protect everyday Americans and others around the globe whose privacy hangs in the balance."
"That's why we're suing to find out what the NSA is hiding," they added.
BREAKING: We just filed a FOIA lawsuit to find out how the NSA — one of America's biggest spy agencies — is using artificial intelligence.
These are dangerous, powerful tools and the public deserves to know how the government is using them.
— ACLU (@ACLU) April 25, 2024
The ACLU filed its lawsuit less than a week after Congress approved a massive expansion of Section 702 of the Foreign Intelligence Surveillance Act (FISA), warrantless spying authority that the NSA has heavily abused to sweep up the communications of American journalists, activists, and lawmakers.
With their newly broadened authority, the NSA and other intelligence agencies will have the power to enlist a wide range of businesses and individuals to participate in their warrantless spying operations—a potential catastrophe for privacy rights.
Rather and Toomey warned Thursday that the growing, secretive use of artificial intelligence tools has "the potential to expand the NSA's surveillance dragnet more than ever before, expose private facts about our lives through vast data-mining activities, and automate decisions that once relied on human expertise and judgment."
"The government's lack of transparency is especially concerning given the dangers that AI systems pose for people's civil rights and civil liberties," Rather and Toomey wrote. "As we've already seen in areas like law enforcement and employment, using algorithmic systems to gather and analyze intelligence can compound privacy intrusions and perpetuate discrimination."
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What to Know About the Coming Fight in Congress Over Mass Surveillance
Lawmakers should not renew Section 702 without fundamental reforms to protect Americans' privacy.
Apr 16, 2023
One of the most sweeping surveillance statutes ever enacted by Congress is set to expire at the end of this year—creating an important opportunity to rein in America's sprawling surveillance state.
Section 702 of the Foreign Intelligence Surveillance Act permits the U.S. government to engage in mass, warrantless surveillance of Americans' international communications, including phone calls, texts, emails, social media messages, and web browsing. The government claims to be pursuing vaguely defined foreign intelligence "targets," but its targets need not be spies, terrorists, or criminals. They can be virtually any foreigner abroad: journalists, academic researchers, scientists, or businesspeople. And in the course of this surveillance, the government casts a wide net that ensnares the communications of ordinary Americans on a massive scale—in violation of our constitutional rights.
As Congress debates the reauthorization of Section 702, it's vital that we tell our representatives in Congress that we want an end to warrantless mass surveillance. Here's what you need to know to follow the debate and speak up for your right to privacy.
1. The NSA uses Section 702 to conduct at least two large-scale surveillance programs.
The government conducts at least two kinds of surveillance under Section 702:
PRISM: The NSA obtains communications—such as international messages, emails, and internet calls—directly from U.S. tech and social media companies like Facebook, Google, Apple, and Microsoft. The government identifies non-U.S. person accounts it wishes to monitor, and then orders the company to disclose all communications and data to and from those accounts, including communications with U.S. persons.
Upstream: Working with companies like AT&T and Verizon, the NSA intercepts and copies Americans' international internet communications in bulk as they flow into and out of the United States. The NSA then searches for key terms, such as email addresses or phone numbers, that are associated with its hundreds of thousands of foreign targets. Communications determined to be to and from those targets—as well as those that happen to be bundled with them in transit—are retained in NSA databases for further use and analysis.
Critically, while Section 702 does not allow the NSA to target Americans at the outset, vast quantities of our communications are still searched and amassed in government databases simply because we are in touch with people abroad. And this is the bait-and-switch: Although the law allows surveillance of foreigners abroad for "foreign intelligence" purposes, the FBI routinely exploit this rich source of our information by searching those databases to find and examine the communications of individual Americans for use in domestic investigations.
2. Section 702 surveillance is expanding.
The scale of Section 702 has been growing significantly over time, meaning more and more Americans are caught in this net.
When the government first began releasing statistics, after the Snowden revelations in 2013, it reported having 89,138 targets. By 2021, the government was targeting the communications of a staggering 232,432 individuals, groups, and organizations. Although the government often seeks to portray the surveillance as "targeted" and narrow, the reality is that it takes place on a massive scale.
Indeed, the government reported that in 2011, Section 702 surveillance resulted in the retention of more than 250 million internet communications (a number that does not reflect the far larger quantity of communications whose contents the NSA searched before discarding them). Given the rate at which the number of Section 702 targets is growing, it's likely that the government today collects over a billion communications under Section 702 each year. But these statistics tell only part of the story. The government has never provided data on the number of Americans who are surveilled under PRISM and Upstream, a number that is surely also increasing. That is a glaring gap in its transparency reports.
3. Section 702 has morphed into a domestic surveillance tool.
Although Congress intended Section 702 to be used for counterterrorism purposes, it's frequently used today to pursue domestic investigations of all kinds. Both the FBI and CIA have access to some of the raw data produced by this surveillance, and they increasingly use that access to examine the private communications of Americans they are investigating—all without a warrant.
FBI agents routinely run searches looking for information about Americans as part of criminal investigations, including those that have nothing to do with national security. Based on the most recent reporting, agents conduct millions of these U.S. person queries—also known as "backdoor searches"—each year. The only limitation on backdoor searches is that they must be "reasonably likely" to retrieve foreign intelligence or evidence of a crime.
The standard for conducting backdoor searches is so low that, without any showing of suspicion, an FBI agent can type in an American's name, email address, or phone number, and pull up whatever communications the FBI's Section 702 collection has vacuumed into its databases over the past five years. These searches are a free pass for accessing constitutionally protected communications that would otherwise be off-limits to the FBI, unless it got a warrant.
Evidence that agents have refused to comply with this low bar for conducting searches has piled up. Agents have violated the FBI's own rules over and over, accessing Americans' private communications without any legitimate purpose. They have dipped into Section 702 data for information about relatives, potential witnesses and informants, journalists, political commentators, and government officials, including a member of Congress.
4. Section 702 violates our constitutional rights, but the courts have failed to intervene.
The Fourth Amendment guarantees the right to be free from unreasonable searches and seizures. Government agents are required to obtain a warrant to access our emails, online messages, and chats. Large-scale, warrantless surveillance of Americans' private communications is at odds with this basic constitutional principle.
Section 702 also violates the Constitution by inhibiting freedom of speech and association. The reasonable fear that the U.S. government is spying on communications may deter journalists, lawyers, activists, and others from communicating freely on the Internet. We all have a right to exchange messages with our friends, family, colleagues, and clients abroad without worrying that the government is reading over our shoulder.
Because Section 702 is unconstitutional, the ACLU and others have attempted to challenge it in court. But the courts have failed to protect our constitutional rights. Instead, courts have repeatedly dismissed civil cases challenging Section 702—citing government claims of secrecy—and have declined to rule on claims in criminal cases that the government's backdoor searches violate the Fourth Amendment. This year, we brought one of these cases to the Supreme Court, but it refused to consider it.
5. Congress has the power to stop Section 702 surveillance.
Given the courts' inaction, it is up to Congress to stand up for our rights. Fifteen years ago, Congress enacted Section 702. Members of Congress should not vote to renew this law without fundamental reforms to protect Americans' privacy.
These reforms should include:
- Putting an end to rampant backdoor searches of Americans by requiring agents to obtain a warrant before searching Section 702 databases for an American's private information.
- Narrowing the scope of Section 702 surveillance by imposing stricter rules on who the government can "target," thereby limiting the number of Americans whose communications are swept up in the course of this spying.
- Limiting how long the government can retain information collected under Section 702 and how the NSA shares that information with other agencies.
- Ensuring that the government notifies individuals when Section 702 information is used against them in court and provides those individuals with sufficient information to obtain full and fair court review.
- Increasing transparency about the number of Americans' communications searched and collected through Section 702 surveillance.
Beyond reforming Section 702 itself, Congress should also adopt broader safeguards that protect Americans in the face of bulk surveillance and strengthen court oversight when the government engages in spying for intelligence purposes.
Over the next year, the ACLU will be seizing on this moment to press Congress to reclaim our privacy rights. We invite you to join us by sending a message to your representatives now.
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Letting 'Secrecy Prevail,' SCOTUS Declines to Hear Challenge to NSA Mass Surveillance
"If the courts are unwilling to hear Wikimedia's challenge, then Congress must step in to protect Americans' privacy," said the Knight First Amendment Institute's litigation director.
Feb 21, 2023
Privacy advocates on Tuesday blasted the U.S. Supreme Court's refusal to hear the Wikimedia Foundation's case against a federal program for spying on Americans' online communications with people abroad.
The nonprofit foundation, which operates Wikipedia, took aim at the National Security Agency (NSA) program "Upstream" that—under Section 702 of the Foreign Intelligence Surveillance Act—searches emails, internet messages, and other web communications leaving and entering the United States.
"In the course of this surveillance, both U.S. residents and individuals located outside the U.S. are impacted," the foundation explained in a statement. "The NSA copies and combs through vast amounts of internet traffic, including private data showing what millions of people around the world are browsing online, from communications with friends and family to reading and editing knowledge on Wikipedia and other Wikimedia projects."
"This government surveillance has had a measurable chilling effect on Wikipedia users, with research documenting a drop in traffic to Wikipedia articles on sensitive topics, following public revelations about the NSA's mass surveillance in 2013," the group added.
Last August, Wikimedia—represented by the ACLU, Knight First Amendment Institute at Columbia University, and the law firm Cooley LLP—petitioned the high court to take up the case after a divided panel of the U.S. Court of Appeals for the 4th Circuit dismissed it based on the "state secrets privilege."
"The Supreme Court's refusal to grant our petition strikes a blow against an individual's right to privacy and freedom of expression—two cornerstones of our society and the building blocks of Wikipedia," said Wikimedia legal director James Buatti. "We will continue to champion everyone's right to free knowledge, and urge Congress to take on the issue of mass surveillance as it evaluates whether to reauthorize Section 702 later this year."
\u201cDisappointing decision today by the Supreme Court to deny cert in Wikimedia v. NSA, a challenge to the mass surveillance of Americans' international communications. \n\nIn short: the government's unjustified claims of secrecy prevailed over the rule of law. https://t.co/NZirFIjXfF\u201d— Ashley Gorski (@Ashley Gorski) 1676998617
As Common Dreams reported earlier this month, in a separate case, the ACLU sued the NSA along with the Central Intelligence Agency, Department of Justice, and Office of the Director of National Intelligence for failing to respond to public records requests for information about Section 702, which will expire if it is not reauthorized.
"Before Congress votes on reauthorizing this law, Americans should know how the government wants to use these sweeping spying powers," Patrick Toomey, deputy project director for the ACLU's National Security Project, said at the time.
Responding to the development in the Wikimedia case on Tuesday, Toomey declared that "the Supreme Court let secrecy prevail today, at immense cost to Americans' privacy."
"We depend on the courts to hold the government to account, especially when it wields powerful new technologies to peer into our lives like never before. But the Supreme Court has again allowed the executive branch to hide abuses behind unjustifiable claims of secrecy," he continued. "It is now up to Congress to insist on landmark reforms that will safeguard Americans in the face of the NSA's mass spying programs."
In a series of tweets about the case, the ACLU asserted that "we all deserve to use the internet without fear of being monitored by the government" and by declining to hear the case, "the court has slammed shut one of the only doors left to hold the NSA accountable for surveillance abuses revealed in 2013" by whistleblower Edward Snowden.
That thread concluded with a call for Congress to kill Section 702—which Snowden himself echoed on the platform:
\u201cThe @ACLU is exactly right, here. Call Congress.\u201d— Edward Snowden (@Edward Snowden) 1677007904
Alex Abdo, litigation director of the Knight First Amendment Institute, joined them in urging action from U.S. lawmakers.
"This decision is a blow to the rule of law," Abdo said of the high court. "The government has now succeeded in insulating from public judicial review one of the most sweeping surveillance programs ever enacted. If the courts are unwilling to hear Wikimedia's challenge, then Congress must step in to protect Americans' privacy by reining in the NSA's mass surveillance of the internet."
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