Three United States Senators and members of the Senate Intelligence Committee are among many Americans who recently discovered that the National Security Agency (NSA) potentially aided the British Government Communications Headquarters (GCHQ) in the mass collection of Yahoo webcam images through the Optic Nerve program. The three Senators, Ron Wyden (D-OR), Mark Udall (D-CO), and Martin Heinrich (D-NM), were appalled by the NSA’s potentially illegal and unsettling aid in the collection of citizens’ information and the “lack of respect for [citizens’] privacy and civil liberties.”
The documents leaked by the renowned Edward Snowden in May of 2013 disclosed that the GCHQ, with the aid of the NSA, had conducted the Optic Nerve program between 2008 and 2010. It was noted that during one six-month period in 2008, the program had targeted at least 1.8 million Yahoo global users. The three Senators’ main concern is that among the at least 1.8 million targeted Yahoo users, many United Kingdom and United States citizens’ images were collected and stored in the GCHQ system. The GCHQ does not have the technical means to filter out U.K. or US citizens’ accounts and images, nor does the U.K. have a law that requires British officials to obtain warrants to access American accounts or images.
To gather images in an “unselected” or bulk manner, the GCHQ saved one image every five minutes from users’ feeds. The images would be used to monitor existing targets and search to find terror suspects or criminals who use more than one ID or anonymous accounts. The reason Yahoo users were targeted for this program was that Yahoo webcam, over other Internet company webcams, was known to be used by the GCHQ targets. What is even more unnerving is that between 3% and 11% of the saved images contained “undesirable nudity.” Not only is the undesirable nudity an issue, but the program also had potential to gather personal materials, such as family home movies.
Section 702 of the Foreign Intelligence Act Amendments allows the government to acquire foreign intelligence by targeting non-US persons “reasonably believed” to be outside US borders. Additionally, the act explicitly prohibits the intentional targeting of people known to be inside the U.S. In order to avoid this, the government must adopt “minimization procedures” to guard against even the inadvertent collection, retention, and dissemination of information about U.S. persons.
If the NSA, as an ally, potentially aided the GCHQ in the collection of UK and US citizens’ images through Yahoo webcam screen grabs, did the NSA violate Section 702 of the FISA Amendment Act? If the NSA helped the GCHQ obtain U.S. citizens’ images, even if it was not the main purpose of the Optic Nerve program, the collection of citizens’ data was inadvertent and as a result violated Section 702. Although it is not fully known the NSA’s contribution to the program, NSA research on facial recognition techniques to identify intelligence targets led to the creation of the Optic Nerve program. The Snowden-leaked documents stated that the Optic Nerve program fed “screengrabs of webcam chats and associated metadata into NSA tools such as Xkeyscore.” Although the GCHQ is not mandated by British law to minimize against collection of data on their citizens, the NSA is mandated by Section 702 to minimize inadvertent collection of data of US persons. Because the NSA potentially aided the GCHQ in the collection of information of both UK and US citizens, the NSA most likely violated Section 702 by gathering data on US citizens it was unauthorized to obtain. The NSA is not lawfully allowed to collect information of US persons as stated in Section 702. The NSA most likely violated Section 702 because the NSA is prohibited from asking or aiding a foreign government in collecting data that it is not lawfully allowed to collect itself. The NSA aided the GCHQ in its collection of data of US and UK citizens by first helping the GCHQ design the Optic Nerve program and the, by utilizing the NSA-created Xkeyscore system which is a database that holds large amounts of data. Thus, no matter how involved or not NSA was with the Optic Nerve program, it most likely violated Section 702 by aiding in the unlawful collection of US citizens’ data.
The three Senators have voiced their concerns so far saying that a very large number of law-abiding Americans could have their private videos and images intercepted and stored for no lawful or valid reason. The program overall has a great potential to violate the civil liberties of Americans. The Internet Association which is comprised of Google, Amazon, eBay, Netflix, AOL, and Twitter among others, has voiced its disapproval in the Optic Nerve program and has pushed for reform of the program. Before too long, others will most likely join in on this conversation as well.