I'm a naval officer who had a top-secret clearance in the Bush administration
working at the Department of Homeland Security and it happened to me, so it can happen to you.
There are two broad categories of government surveillance.
The first category relates to criminal surveillance and that's the mechanism by which
federal prosecutors obtain authority from courts to
operate a wiretap on a telephone line or to surveil an email account.
And that's all related to having probable cause to believe that
that individual is engaged in criminal activity.
There's a second category of surveillance that relates to the collection of foreign intelligence
and that is much more of a national security tool.
It's governed by what's known as the Foreign Intelligence Surveillance Act,
which has been amended many times.
That's another category of surveillance in which agents of foreign powers
or foreign powers are surveilled to collect foreign intelligence information
for use by the U.S. government.
Almost everything we do is sort of now potentially surveillable,
which I think is, in a sense, the most important structural change in society.
It used to be that if you read a book, if you had a conversation, made a visit to a friend,
these were all facts about your life that would not leave a permanent record.
Macro change is a shift toward, in a sense, everything being privately surveilled
and therefore ready for government acquisition.
My name is Faisal Gill. I'm an attorney.
So, when Glenn Greenwald called me I was in private practice.
My office was in D.C. but at that time I was living in Burlington, Vermont.
He wanted to schedule a meeting to meet.
At that time I was just trying to build up my practice.
I knew of Glenn Greenwald because I had read the newspaper articles and, you know,
everything that came out about Edward Snowden, but I did not know him personally.
So, I went to New York and we met at a hotel and at that time Glenn Greenwald asked
if my email address was what my email address was. He read that to me.
He goes, "Is this your email address." I said, "Yes it is."
And then he said, "Well I'm sorry to tell you but you've been under surveillance by the NSA since 2006."
And then I asked him, "Well, how do you know the NSA was spying on me?"
And he basically said, "Well, the documents that Edward Snowden took...
if this is your email address, this is the email address that NSA was spying on."
And I think I asked him also, "Were there any other people being spied on? Was it just me?"
And then he said there was a few other prominent Muslims that were being spied on along with me.
You know, before this happened to me, when people would ask me,
"Hey do you think minorities are picked on more?"
I would always say, "Absolutely not. That's just complete nonsense."
But now, as I look at the statistics, I absolutely think that that is the case.
The reason the NSA was spying on me is because of my religion
and because of the fact that I'm active in Muslim issues.
The principle basis for FISA surveillance authority is you've got to have probable cause.
I think the important thing to remember particularly with U.S. persons is:
you cannot solely get surveillance authority on a U.S. person because of First Amendment activity.
So, in other words, if I routinely meet with known terrorism suspects
or known intelligence officials of a foreign country, my meeting with
them alone is not sufficient to get authority because that's First Amendment association activity,
but there's got to be other evidence that the FBI can present to the court
that demonstrates why it's appropriate to surveil me.
None of those happen. I don't deal with any foreign governments.
I don't associate with any known terrorists. In my mind I'm thinking,
"What am I doing? What have I done that would warrant this level of scrutiny, one being spied on?"
And I've heard people talk about in my case, "Well, what are you worried about if you're not
doing anything wrong... so what? They surveilled you, they found nothing... so what?"
And I sit there and go: that's not the criteria of our justice system.
If that's the case, throw out the Fourth Amendment. You cannot have unreasonable searches.
I think given the relatively... the very robust oversight we have both internally at the FBI and the DOJ,
the oversight we have from four committees on the Hill, the oversight you have from the PCLOB...
there's a significant amount of scrutiny.
I don't worry about the intentions or the goodwill of the men and women that run these processes
and to the extent that they're making mistakes,
there's a robust system that allows for the detection and correction of those mistakes.
An important thing to remember is what happened to me was not just me.
NSA was surveilling about a hundred prominent Muslims in the United States.
And none of us are charged, and that's a very important fact right there.
If we were being surveilled, none of us are charged.
Forget about even being indicted. Forget about even being convicted.
You see a pattern of justifications for surveillance being offered that make extraordinary claims of necessity,
extraordinary claims about the value of some more intrusive or very broad-based surveillance,
and then much more quietly years later it turns out that those claims are just not true.
When the NSA was caught doing bulk telephone records surveillance,
claims were made about the thousands or tens of thousands of lives that have been saved by this,
and then later it turned out really, literally, no useful intelligence came out of that.
The thing that can happen is either you target someone that shouldn't have been targeted,
you're overly broad in your targeting of them, you collect information that is beyond the bounds of...
that's unrelated to foreign intelligence and the typical ways that
you correct for that is you destroy the information.
So, it may be that if you're legitimately up on a target,
you're legitimately surveilling someone, and you collect information that is not related to foreign intelligence,
there are things called "minimization procedures"
– which means the recordings of those phone calls or that email information or whatever it may be –
it's destroyed.
So, it's important to recognize that there is a persistent pattern in debates about surveillance:
very dramatic claims about security benefits being made
for programs that turn out to have little or no benefit.
So, the claim that we're doing this in order to protect against terrorism,
in order to safeguard national security,
should not be taken to mean it actually does anything.
I think one of the things that we need to be mindful of is that,
as we get farther and farther away from the events of 9/11,
we could get bald at the assumption that we don't need these surveillance authorities anymore
or they're not meaningful to our protection and our safety, and that couldn't be farther from the truth.
And so I think as we debate these issues, it's really important for us to keep in mind
exactly the kind of intelligence and information they provide the government
so it can take steps to prevent those kinds of horrific events
and also to keep in mind that the government is constantly thinking about
how does it execute these authorities while still maintaining compliance
and adherence to Fourth Amendment civil liberties rights
and all the other laws and regulations with which it must comply.
When you're being presented by facts from law enforcement and they're putting together affidavits
and then you have a U.S. Attorney basically really advocating
– and U.S. Attorneys are very smart and they're skilled in advocating –
if you're a jurist, you're being told, "Okay, look, I got three, four law enforcement agencies telling me
that this person might be committing the next big terrorist act
that could lead to, you know, deaths of hundreds if not thousands of Americans.
On the other side, all I got to do is give them this warrant and they'll figure out
whether this person is doing anything bad and if that person is doing anything bad, they could stop him."
What would you do? I mean, if I put myself in that situation...
I don't know if I wouldn't grant the FISA warrant.
The FISA court has the ability to order the government to cut it out
if they think the government is doing something wrong,
but a pattern we've seen in recent years is what they call "compliance incidents"
– cases where the government is operating a surveillance program in a way that
is not consistent with what the court ordered them to do.
And very often you'll see a ruling where this is finally reported to the court after three or five or more years.
So, for this very long period of time, we have been operating contrary to what the
court ordered or what the law requires, impacting often
many thousands or millions of communications and individuals.
The Inspectors General are there to, among other things, ensure the agencies are complying with the law.
They can't be everywhere within an agency like NSA with tens of thousands of employees
with many, many, many different code-word classified, extremely complex surveillance programs.
Our system is built on the adversarial system, right?
You have a prosecutor, you have a defense attorney, and both are basically advocating their positions to a judge.
In this system, there is no other side.
It's just one side saying, "Here's all the stuff."
So, those two points are very, very big in my opinion and I think are lacking here.
The most important thing we can do at a structural level is
resist the growing demands for bans on strong encryption.
For a lot of sometimes good reasons, law enforcement would love to be able to
guarantee that they can read anyone's communications if they get a warrant.
That nobody can render their data unreadable to the government.
Well, I think there's a healthy skepticism over government surveillance.
I don't think anyone wants to live in a police state.
We know what life was like under the Stasi in East Germany and
that was not a happy life for those people living in East Germany, and
so I think there's a healthy skepticism of it and I think that's why there's such scrutiny of it.
So, I think people understand it's necessary and it's needed,
but it's got to be tailored and appropriate for the threat we're facing.
But if you are concerned about the shift from traditional particularized individual surveillance
to potential population-scale surveillance – kind of automated monitoring of the population as a whole –
then I think it's essential to essentially create technical barriers to that kind of data collection
because if the architecture makes it possible, it seems almost inevitable that that will happen.
I think that's how some people like to frame it.
So, they like to create a binary sort of analysis where you either have security or you have civil liberty.
I don't agree with that. I think you can have both.
My view is you can't have much in the way of civil liberties if the nation is insecure
and there's also, I think, a well-constructed system for oversight and correction as needed.
There are so many actors in this process of government surveillance, whether you're talking about
the intelligence community, the judges that approve the authority,
the House and Senate that oversee the use of that authority –
I think there is very robust accountability and oversight that is given
to make sure that these authorities are not abused.
For a FISA court to have 98% of the warrants granted, that's ridiculous.
And then I would ask, "Where is the check-and-balance?"
Ultimately the safeguard, the accountability for all this, it does fall on the shoulders of voters.