Under the surveillance programs revealed by Edward Snowden earlier this year, we learned that the government has collected vast amounts of information on private communications, including those of civil society organizations. One of the disclosed programs nets metadata on virtually every phone call in the country, and the second focuses on the communications between Americans and foreigners. These programs raise a variety of concerns for civil society organizations, and particularly those engaged in international work. Placing international groups and their partners under greater government scrutiny could backfire by decreasing foreigners’ willingness to engage with American civil society, a result which would be counter to our national interests. A lawsuit recently brought against the National Security Agency (NSA) by the Electronic Frontier Foundation and almost two dozen political and religious groups makes clear that American organizations are concerned about government scrutiny and its impact on the rights of association, assembly and expression. The efficacy of civil society, particularly international humanitarian and peacebuilding operations, is threatened both at home and abroad by the NSA’s surveillance programs.
The Snowden leaks cover two surveillance programs authorized by the Foreign Intelligence Surveillance Act (FISA), known as the “702” and “Patriot 215” programs.
The NSA collects metadata on almost all of our domestic-domestic phone calls using section 215 of the Patriot Act. This is a ‘collect the whole haystack’ approach to surveillance. Although this program does not collect the content of the communications, the metadata provides information on which numbers call each other and how often and the duration of each call. Thus, although the data is benign in isolation, the NSA’s comprehensive database can piece together a very detailed picture of individuals or organizations.
The FISA 702 program has been used to put domestic-foreign communications under particular scrutiny. As long as the government targets foreigners located abroad who do not have recognized Constitutional protections, the government is not limited to metadata, and can collect the actual content of communications as well. The safeguards on this program are minimal; the government simply needs to assert to the FISA Court that a “significant” purpose of the surveillance is to acquire foreign intelligence information and to provide the court with its targeting and minimization procedures. In designing its targeting procedures, the government simply has to have a 51 percent certainty that the party being targeted is a foreigner located overseas - a coin flip essentially. When Americans are on the other end of a call and their communications get swept up by these intercepts, their rights are dismissed under the argument that the foreigner was the target, the American was “incidental.”
Civil Society Implications:
Any American organization or individual that regularly communicates with people in other countries is highly susceptible to having their communications “incidentally” collected by the 702 program. The work of international groups necessarily depends on a high degree of trust and cooperation with their foreign partners. It is hard to do this if you cannot have the sensitive conversations in private. We may see that foreign associates are less willing to share information or cooperate with civil society now that the scope of 702 program has been revealed.
Consider what kind of message the 702 program is sending to our foreign partners. A local charity helping distribute aid in a conflict zone may be under threat of violence from militias or a repressive government. If the content of their communications revealing logistical arrangements and the identity of people involved were to be revealed to the wrong person, their safety and freedom could be endangered. Similarly, a nonprofit working to bring warring parties together to resolve their dispute needs to be able to guarantee the privacy of their communications. The thought of the U.S. government listening in could be enough to derail a peace project.
We do not know the full scope of domestic-foreign communications that are being collected under the 702 program, but since foreign intelligence need only be a “significant” purpose of the surveillance, this might cover virtually any information relevant to foreign relations. If the U.S. government were engaged in such broad surveillance of domestic-foreign communications, this would seem to assume that these people are suspects first, partners second. In other words, guilty until proven otherwise. The government should be doing everything in its power to cultivate relationships between civil society and foreigners. Surveillance programs can be counter-productive in this respect. Civil society advances some of our vital national interests like Track II diplomacy and humanitarian assistance, but it cannot be effective if it is isolated internationally.
Political and religious organizations at home are also concerned about surveillance leading to a chilling effect. The public willingness to engage with these groups is intimately connected with the First Amendment’s freedom of association, a freedom undermined by the metadata database. The Electronic Frontier Foundation recently filed a lawsuit against the NSA on behalf of almost two dozen religious and political groups, arguing that the collection of their metadata “discloses the expressive, political, social, personal, private, and intimate associational connections among individuals and groups, which would ordinarily not be disclosed to the public or the government.”
Our civil society affiliations need to remain private and free from scrutiny. There is no point having freedom of association if the people exercising that right live in fear of individual exposure.
The privacy of associational details is critical, it defines the whole climate under which civil society and its participants operate. We currently live in a society where people feel generally free to engage with whatever political or religious group they please. This has not always been the case, nor, in light of the NSA’s surveillance, is there any guarantee it will always remain that way.
During the civil rights movement, Alabama tried to dislodge the NAACP from the state by subpoenaing their membership lists. Members were going to be targeted with "economic reprisal, loss of employment, threat of physical coercion, and other manifestations of physical hostility.” The Supreme Court ruled it unconstitutional on freedom of association grounds; “immunity from state scrutiny of petitioner's membership lists is here so related to the right of petitioner's members to pursue their lawful private interests privately and to associate freely with others in doing so as to come within the protection of the Fourteenth Amendment.” Keep in mind that the metadata database is more intrusive than membership lists, because in addition to people with ‘full membership’, it can reveal a larger web of relationships - anyone else who even casually associates with an organization. Instead of recognizing the lessons of NAACP v. Alabama and how important the freedom of association is to a functional civil society, we seem to have moved backwards on this issue instead of forward.
The problems for civil society posed by NSA surveillance are both practical and principled. Groups that work internationally are under greater scrutiny because they have foreign allies - this sends the wrong message and can affect their work. For Americans and the Constitution, the surveillance programs are a strike at the freedom of association and represent a step in the wrong direction.