03 Jan 2014

Conflicting Federal Court Rulings on NSA Phone Surveillance Ignite Debate – What to do in the Meantime?

Don’t dial that friend in Yemen just yet. On a judicial hot seat the last couple of weeks, the NSA’s maligned mass phone surveillance programs apparently have found both esteemed supporters and opponents in the country’s federal district courts.

In the past three weeks, we’ve seen two opposite rulings from US federal district courts on the constitutionality of the NSA’s mass phone surveillance programs, setting the stage for what may eventually demand US Supreme Court involvement.

On December 16, US District Court Justice Richard Leon ruled that the NSA’s mass call surveillance programs are unconstitutional. Justice Leon essentially decided that because the programs could not beproven uniquely instrumental at preventing terrorist attacks, the programs are likely an unjustified breach of Fourth Amendment rights. In Justice Leon’s ruling, Klayman et al., v. Obama et al. cv-13-0851-RJL, the court first granted an injunction against the government recording of the plaintiff’s telephone records but then stayed the injunction pending appeal.

However, just 11 days later, US District Court Justice William Pauley III ruled in almost the exact opposite direction – that the NSA phone surveillance programs were constitutional, because they were in fact instrumental in preventing terrorist attacks. He cites how the program, if it had been operational before 9/11, could have allowed law enforcement to know that Khalid al-Mihdhar, one of the eventual 9/11 hijackers, had made a series of phone calls from San Diego to an Al Qaeda safe house in Yemen – information that might have prevented the attack. Pauley also cites a 1979 Supreme Court decision, Smith v. Maryland, that held individuals “have no legitimate expectation of privacy” with regard to telephone numbers they dial.

In the wake of the conflicting federal rulings and what is certain to be an ongoing debate in federal courts this year, we are left to consider the future of NSA surveillance programs extending beyond phone surveillance to other media the NSA is allegedly monitoring: email, online activities and others.

Many RPost users have specifically asked us how the NSA surveillance programs have affected information privacy with regard to email communication.

When NSA whistleblower Edward Snowden’s initial revelations were made public, RPost prepared a detailed analysis as to what NSA surveillance means for email users; in terms of message privacy. We shared Snowden’s disclosure that email encryption was one of the few things that actually worked [to prevent data breaches], though “endpoint security” could be seen as a vulnerability. In a follow-up analysis, we went on to discuss how RPost’s email encryption service, unlike competitors’ offerings, is particularly resistant to data breaches and how RPost upholds data security even at the endpoints.

The debate around the constitutionality of the NSA’s surveillance programs will continue with no clear resolution on the immediate horizon.

Because a court injunction against such programs is not expected in the meantime, such surveillance programs will likely continue to operate. As such, we recommend that those concerned with information privacy adopt our “best practice for email privacy” in 2014:

Encrypt your sensitive emails with an email encryption service that secures your email not only between the endpoints but also at the endpoints.

RPost, the winner of the World Mail Award for Security, provides a simple-to-use, secure, encrypted email service as part of RMail: RPost’s all-in-one solution for high-value email and electronic document delivery. RMail services work with a user’s existing email address and can be used with Microsoft Outlook, RMail webmail, or even RMail mobile apps. New users can get started for free with a plan that allows up to 10 messages per month.