Washington, DC (March 10, 2015) – This morning the National Association of Criminal Defense Lawyers (NACDL) joined a major new lawsuit challenging the National Security Agency's mass interception and searching of Americans' international Internet communications, including emails, web-browsing content, and search-engine queries. The lawsuit was filed by the American Civil Liberties Union (ACLU).
At issue is the NSA's "upstream" surveillance, which involves the NSA's tapping into the internet backbone inside the United States – the physical infrastructure that carries Americans' online communications with each other and with the rest of the world. The NSA conducts this spying under a law called the FISA Amendments Act of 2008, which allows the agency to target the communications of foreigners abroad.
In the course of its surveillance, the NSA copies and combs through vast amounts of Internet traffic, which it intercepts inside the United States with the help of major telecommunications companies. It searches that traffic for keywords called "selectors" that are associated with its targets. The surveillance involves the NSA's warrantless review of the emails and Internet activities of millions of ordinary Americans.
NACDL President Theodore Simon said: "The government's mass surveillance of ordinary citizens constitutes a threat to the privacy and civil liberties of all Americans. As president of the nation's criminal defense bar, I am particularly concerned with how such surveillance programs violate attorney-client privilege. The privacy of attorneys' communications with their clients is necessary to our notion of a fair justice system. The dragnet surveillance programs make ensuring attorney-client privilege difficult if not impossible. The mass and indiscriminate surveillance of Americans by the government must end."
Unlike the surveillance considered by the Supreme Court in Clapper v. Amnesty, upstream surveillance is not limited to the communications of NSA targets. Instead, as we have since learned, the NSA is searching the content of nearly all text-based Internet traffic entering or leaving the country – as well as many domestic communications – looking for thousands of keywords such as email addresses or phone numbers. One leaked NSA document included a slide that named Wikipedia, among other major websites, as a good surveillance target for monitoring what people do on the Internet.
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.