Cellphones, Constitutional Law, Politics, Privacy, SCOTUS, Supreme Court, Technology

NSA Surveillance In 2013: The Year Of Vindicated Political Paranoia

In too many ways, 2013 was a year that vindicated the long-standing paranoia of many Americans, particularly the more conservative. A bewildering number of stories littered the news that seemed to confirm exactly the sort of gross government overreach that previously sounded like a delusion of someone whose eyes were scanning the skies for black helicopters. In spring 2013, for example, we learned that the IRS had been targeting the 501(c)(3) applications of conservative and libertarian organizations, apparently based solely on their political and philosophical affiliations. Nothing in 2013, though, fanned the flames of political paranoia quite like revelations of the National Security Agency’s mass surveillance programs.

In Clapper v. Amnesty International USA, decided in February, the U.S. Supreme Court dismissed Amnesty International’s constitutional challenge to a portion of the FISA Amendments Act of 2008. In its 5-4 opinion, the Court found that Amnesty lacked Article III standing, in part because the plaintiffs could not show that they had necessarily been targeted for surveillance. When Edward Snowden later disclosed details of the NSA’s PRISM surveillance program, civil libertarians experienced something of a Pyrrhic victory. Standing would not be a problem in many future lawsuits because the revelation of PRISM established that millions of Americans had been subject to some NSA spying. The only question was whether that surveillance amounted to a violation of the law.

As we leave 2013 and 2014 dawns, some new developments have emerged . . . .

The German newspaper Der Spiegel reported this week that it received even more leaked documents on the NSA’s surveillance programs, including a 50-page catalog of “backdoor penetration techniques.” (“Backdoor penetration techniques” may sound like a euphemism for tequila and persuasion, but they are actually methods for bypassing normal security authentication and gaining remote access to computer systems.) The catalog in question allowed agents to browse for particular solutions to their surveillance problems, apparently ordering spying software like you’d order the Szechuan chicken from a Chinese take-out place.

Der Spiegel also reported that the NSA may have a covert software application, known as DROPOUT JEEP, that remotely shares an iPhone user’s text messages, contact list entries, and voicemails with the NSA. DROPOUT JEEP allegedly can also activate the iPhone’s camera or microphone, allowing the NSA real-time surveillance of the user. Security researcher Jacob Appelbaum presented evidence of the NSA program at the 30th Chaos Communications Congress in Germany a few days ago. Applebaum claimed that the leaked NSA documents show that the government has been able to successfully install the DROPOUT JEEP software on every iPhone it has attempted to target, though the documents did not indicate how many phones had been targeted.

Der Spiegel also reported on the NSA’s “method interdiction,” essentially when the NSA intercepts laptops or other computer hardware purchased online, re-routes them to NSA warehouses, installs spyware or hardware components that provide backdoor access, then ships the infected computers on to their purchasers. From then on, intelligence agencies can conduct surveillance remotely.

Apple has since denied involvement, issuing a public statement claiming that it has never worked with the NSA and is unaware of alleged efforts to target iPhones. Apple insisted, “We will continue to use our resources to stay ahead of malicious hackers and defend our customers from security attacks, regardless of who’s behind them.” Nevertheless, Apple support forums and internet comments sections have been buzzing with speculations ranging from doubts about Apple’s candor to dubious claims that iPhones have hidden microphones that record even when the phone is turned off.

The NSA issued a statement on Tuesday saying, “The United States pursues its intelligence mission with care to ensure that the innocent users of those same technologies are not affected.” It did not comment on Der Spiegel and Applebaum’s specific allegations about the DROPOUT JEEP program for iPhones.

I am not so sure if the NSA is surveilling my iPhone, though I would be a hell of a lot more sure if I were Jacob Appelbaum. I am typing this sentence on an Apple device, while surrounded by no fewer than four other Apple devices within reach. I, for one, do not want to have to put on pants every time I use an Apple product, for fear that on the other side of the iSight camera there’s a government employee staring back at me. I don’t want the NSA or anyone else to listen to my tone-deaf rapping along with Waka Flocka Flame when “Hard in Da Paint” is playing on my iPhone. No one deserves to witness the gross indignities of my private time.

This sort of framing, though, trivializes the civil liberties concerns at stake, but isn’t it how most of us respond?

The real tragedy of 2013’s mass surveillance revelations is not the fueling of some fringe thinkers’ paranoia. The real tragedy is not that the tin-foil-hat-clad among us may have gotten some things right. Rather, the real tragedy is the extent to which the rest of us have become accustomed to — utterly unimpressed by — further spying revelations. Most of us hardly keep track of them closely any more. We make “hi NSA!” jokes on Facebook or self-deprecating remarks about having a life too boring for the NSA to be interested. Our eyes glaze over when an article tries to explain the technical differences between PRISM and MUSCULAR. We may shrug and say we figured all along that something like this was happening. Or we may fall back on that most dangerous threat to freedom from unreasonable search: if we haven’t done anything wrong, we shouldn’t have anything to hide, right? Maybe this stuff is only a big deal for the bad guys. The paranoid may have been right about government spying, but so what? So, we move along with our days.

The vindication of this political paranoia means that no one wins. Nut-jobs only get nuttier. Liberals have to find ways to apologize or back-peddle, since this Orwellian government oversight comes from a Democratic administration. Level-headed conservatives start to wonder whether they need to start listening to the nut jobs more often. Most importantly, 2013’s year of vindicated political paranoia meant that we know that our the government watches us all a much more closely than we knew 365 days ago. As 2013 becomes history, we shall see whether 2014 brings more of the same. Whether the American public sees it or not, rest assured the NSA will.

Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at tabo.atl@gmail.com

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