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Jump to Skip. President Trump holds the keys to some of the most powerful spying programs in the world — surveillance that gives the government warrantless access to a sea of digital data moving around the planet.
That includes countless communications of Americans and foreigners alike. No president should wield these powers, and certainly not one who has called for expanded spying on minorities and hacking the s of his political rival. The NSA conducts this surveillance by tapping into the internet backbone inside the United States — the physical infrastructure that carries our domestic and international online communications.
Although the NSA has conducted Upstream surveillance in one form or another for more than a decade, no public court has ever decided whether this spying regime is constitutional. Wikimedia has sued to stop the government from searching its internet communications, which it relies on to exchange information with its many far-flung contributors and readers. Web-browsing activities like these can reveal deeply personal information about what people are reading or writing online, including their political views, religious beliefs, medical questions, and other private information.
The case then proceeded to the discovery phase, where Wikimedia sought information that would build on the extensive public record and deposed an NSA official. The NSA has invoked the state secrets privilege in response to dozens of questions, baselessly refusing to provide a shred of new information about Upstream surveillance.
When Congress set out to reform our surveillance laws after the abuses of the s and 70s, it recognized the conflict between absolute secrecy and ability — and it created a new procedure in FISA to ensure challenges to surveillance would be able to go forward. That procedure requires the government to provide sensitive information to the court in the first instance — with appropriate security precautions — so that the court can rule on claims of unlawful government surveillance.
Congress recognized the dangers of allowing the executive branch to hide behind unilateral claims of secrecy, and it adopted a starkly different approach in FISA. Speak Freely.
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