Slide from the NSA’s PRISM surveillance program presentation from Edward Snowden & first disclosed in June 2013

In a major story further demonstrating how the privacy of Americans can so easily become collateral damage of the national security state’s dragnet surveillance, the Washington Post reported “incidental” collection or “inadvertent” collection of US persons’ data “far outnumbered” the data specifically related to “legal” targets by a ratio of 9-to-1.

NSA whistleblower Edward Snowden provided the Post with a cache of surveillance files containing the contents of intercepted communications, which were collected under the FISA Amendments Act of 2008. The files consisted of “160,000 intercepted emails and instant-message conversations, some of them hundreds of pages long, and 7,900 documents taken from more than 11,000 online accounts.” The material was from between 2009 and 2012, “a period of exponential growth for the NSA’s domestic collection.”

According to the Post, “most of the people” caught up in the surveillance were not targets and “would not lawfully qualify as such.”

Post journalists Barton Gellman, Ashkan Soltani and Julie Tate found “medical records sent from one family member to another, résumés from job hunters and academic transcripts of schoolchildren.” They found a photo of a “young girl” in a religious dress beaming “at a camera outside a mosque.” They found pictures of “infants and toddlers in bathtubs, on swings, sprawled on their backs” and as they were “kissed by their mothers.” They found photos of men showing off their “physiques.” They found women modeling lingerie and “leaning suggestively into a webcam or striking risque poses in shorts and bikini tops.”

“Even if one could conceivably justify the initial, inadvertent interception of baby pictures and love letters of innocent bystanders,” Snowden told the Post, “their continued storage in government databases is both troubling and dangerous. Who knows how that information will be used in the future?”

Like in wars, the argument for permitting this massive dragnet to sweep up the personal communications of hundreds of thousands of people not specifically targeted by NSA surveillance depends upon accepting that there will be people who become collateral damage. Just as Pentagon officials will downplay civilian casualties in war as unintended but a “natural” part of war, the world is expected to accept that the collection of communications of not just Americans but also foreigners is a natural part of “intelligence gathering” to protect against terrorism.

Indeed, Robert Litt, the general counsel for the Office of the Director of National Intelligence, reacted to the story as if it was incomplete. “The most that you could conclude from these news reports is that each valid foreign intelligence target talks to an average of nine people.” Ardent NSA defender Stewart Baker regarded the Post’s analysis of the surveillance material as “dubious.” And Benjamin Wittes, an editor of Lawfare who is well-liked by America’s national security establishment, reasoned, “A single target communicates with a great many people,” and, “Intelligence collection is all about sweeping in information and then winnowing it down and finding the important facts.”

However, this argument does not justify the continued storage of romantic exchanges between targets and their love interests.

More than 800 pages of “anguished correspondence” between a 29-year-old woman in Australia, who converted to Islam, and a 26-year-old Afghan, who grew up in Australia and wanted to return to Afghanistan, were collected as the NSA and Australian Signals Directorate tracked this Afghan. Though the man traveled to Afghanistan and attempted to join the Taliban, that does not justify the collection and storage of every detail of their communications, as they fell in and out of love with each other.

This is one sample of what was collected from the woman’s Facebook account:

Im putting all my pride aside just to say that i will miss you dearly and your the only person that i really allowed myself to get close to after losing my ex husband, my dad and my brother.. Im glad it was so easy for you to move on and put what we had aside and for me well Im just soo happy i met you. You will always remain in my heart. I know you left for a purpose it hurts like hell sometimes not because Im needy but because i wish i could have been with you.

It also is apparently very easy to get around controls that are supposed to protect privacy. NSA analysts can justify collecting data from US persons by claiming emails are in a foreign language, which the Post appropriately notes is a “quality shared by tens of millions of Americans.” They can presume all contacts on a buddy list of a “known foreign national” are “foreign.” They can seek approval to treat an account as “foreign” if that computer address is using a foreign IP address.

As Georgetown Law professor has detailed in her analysis [PDF] of this dragnet surveillance, there is no judicial review. There is no probable cause. There is no particularity to this surveillance. The programmatic interception of communications is not limited to any duration. The data may be retained and passed on to agencies for criminal investigation.

Information that is supposed to be subject to controls known as “minimization procedures” to protect privacy can be circumvented by passing the data along to the FBI or even the CIA. This enables the FBI or CIA to now possess and utilize information on US persons it could not traditionally and legally collect for law enforcement. [Note: The CIA is only supposed to be involved in overseas collection, but it would seem it could take advantage of bureaucratic division to engage in surveillance Congress sought to discourage and prevent after the Church Committee investigation.]

Senator Ron Wyden recently received confirmation from Director of National Intelligence James Clapper of how intelligence agencies search through this “incidentally” and “inadvertently” collected information on and from Americans without a warrant. The FBI claims it does not know how many “backdoor searches” it conducts.

He reacted:

…While intelligence officials have often argued that it is impossible to estimate how many Americans’ communications are getting swept up by the government under Section 702 [of the FISA Amendments Act], the Foreign Intelligence Surveillance Court has noted that the NSA acquires more than two hundred and fifty million Internet communications every year using Section 702, so even if US communications make up a small fraction of that total, the number of US communications being collected is potentially quite large. The scale of this activity seems to be something that could be conducted pursuant to probable cause warrants, particularly given the exceptions that are included in the bipartisan bicameral legislation that I and others have proposed… [emphasis added]

Collateral damage is tolerated when some kind of mission or higher cause is being advanced. In this case, the widespread presumption is that this is preventing terrorism. That is what plays a key role in oversight bodies like the Privacy and Civil Liberties Oversight Board (PCLOB) rationalizing the scope of intrusion into Americans’ private communications and ultimately issuing a report [PDF] that was very lenient toward the NSA. But what if the programs under this authority, such as PRISM and Upstream, are not proven to thwart terrorism?

Then-deputy director John Inglis claimed in June during a House Intelligence Committee hearing that “the Section 702 program was involved in 90 percent” of “50 thwarted plots.” But ProPublica conducted an analysis and determined that these claims were false and rather misleading. Only a handful of terrorism plots were maybe thwarted because of this dragnet surveillance.

If the government cannot actually demonstrate that this claimed broad authority, which the judicial branch has mostly approved, is stopping terrorism, should society accept the extent to which their privacy has become collateral damage?

Finally, prior to the Church Committee investigation in 1975, as described by The Lawless State by Morton Halperin, Jerry Berman, Robert Borosage, and Christine Marwick, the NSA had a watch list program for searching for the “ever elusive foreign involvement behind the civil rights and antiwar movements.” The program became known as MINARET. The NSA defended this surveillance by claiming communications had been collected “as an incidental and unintended act in the conduct of the interception of foreign communications.”

The rationale is no different today. In the 1960s, the privacy of Americans with merely a fleeting interest in political activism would likely be added to the list. Today, foreignness, having knowledge about targets nobody knows NSA is targeting, being in arenas in cyberspace targets are known to lurk, etc, are all cause to have personal data intercepted.

It does not bother anyone who identifies with the national security state that nine out of ten people, who have been subject to NSA surveillance, are not people the NSA is actually targeting. This is an understood cost of doing dragnet surveillance and it is a cost that before Snowden the national security state kept secret so the world could not debate whether this is appropriate or not.

Whether this wholesale disregard and cavalier attitude toward protecting privacy displayed by national security state defenders will persist or not depends upon support for new policy. It depends upon dispelling the fallacy that this is necessary for security—because it is not. It just is convenient for power to collect all this information so they can dominate and control all arenas of life and claim to know whenever some malicious act is being planned. Of course, the truth is they have so much information that they never really know what they have or don’t have until something bad has happened or been narrowly skirted.