On Friday April 28th, the NSA released a statement in which the agency declared that they would be ending certain “upstream” surveillance gathering under the Foreign Intelligence Surveillance Act (FISA) Section 702. Upstream is a collection of four programs, which include FAIRVIEW, BLARNEY, STORMBREW, and OAKSTAR. Each company collects telephone and internet data directly from the internet backbone. The Upstream surveillance program, as well as the PRISM surveillance program, are both justified in part under Section 702 of FISA, which is set to expire this December if it is not renewed by Congress. The existence of the Upstream surveillance program was made public in 2013, when former NSA contractor Edward Snowden released NSA documents and slides which exposed the program.
Not all of the collection of communications under Upstream is being abandoned. “After considerable evaluation of the program and available technology, NSA has decided that its Section 702 foreign intelligence surveillance activities will no longer include any upstream internet communications that are solely “about” a foreign intelligence target. Instead, this surveillance will now be limited to only those communications that are directly “to” or “from” a foreign intelligence target,” the NSA said in its statement. Collection of communications that are solely “about” a foreign intelligence target may still be being collected under Executive Order 12333.
Many communications that did not even mention a foreign surveillance target were being “incidentally” collected under the Upstream program. The curtailment of the Upstream program was not something the NSA decided to do on it’s own. The decision was made only after it was forced to curtail the program by the FISA court. In 2011, the NSA revealed to the FISA court that it had failed to follow regulations the FISA court created. The FISA court gave the NSA two extensions to allow the NSA time to rectify the problem. However, in that time the NSA did not limit the “about” searches which were being conducted under the program, and so the FISA court then refused to grant an extension of the Upstream surveillance program unless the NSA completely stopped searches “about” foreign surveillance targets.
Upstream is the result of the NSA partnering with telecommunications corporations. One part of Upstream is the FAIRVIEW program, which was started in 1985, and collects telephone and internet data in cooperation with AT&T. In 2011 it was revealed the government spent nearly $200 million on the FAIRVIEW program. Similarly, with STORMBREW, the NSA partners with Verizon to conduct Upstream surveillance collection from fiber optic cables in Washington, California, Texas, Florida, New York, Virginia, and Pennsylvania. In 2013, the STORMBREW program cost a little over $46 million. BLARNEY, another part of Upstream, was created in 1978, after the passage of FISA, and was expanded after the attacks of 9/11. BLARNEY was reported to cost nearly $66 million in 2013. OAKSTAR, which consists of eight different programs, is the only part of Upstream to tap into fiber optics cables located outside of the United States, and in 2013 cost nearly $9.5 million.
“This change ends a practice that could result in Americans’ communications being collected without a warrant merely for mentioning a foreign target … For years, I’ve repeatedly raised concerns that this amounted to an end run around the Fourth Amendment. This transparency should be commended. To permanently protect Americans’ rights, I intend to introduce legislation banning this kind of collection in the future,” Democratic Senator Ron Wyden of Oregon said in a statement. Senators such as Senator Wyden and Senator Rand Paul have been trying for several years to get the NSA to reveal how many Americans communications were being incidentally collected by the NSA but have never been given even an estimate. Many privacy advocates have condemned the Upstream surveillance program as unconstitutional, a violation of the 4th amendment to the US Constitution. Even the Privacy and Civil Liberties Oversight Board suggested the program may be constitutionally questionable in a report the board released in 2014.
While some privacy advocates are hailing this as a victory for privacy rights, it should be noted it is only a very small victory, as PRISM and other surveillance programs are still in full effect, and as mentioned above, Upstream collection “about” foreign targets may still be being collected under another program justified by Executive Order 12333. According to a FISA court order issued in October of 2011, Upstream collection made up only about 9% of the communications being collected by the NSA under FISA Section 702.