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James Boyd
Center for Applied Cybersecurity Research

Ken Turchi
Maurer School of Law

Last modified: Friday, June 21, 2013

IU experts: Latest PRISM disclosures heighten concern over NSA surveillance, show need for oversight

June 21, 2013

BLOOMINGTON, Ind. -- New top-secret documents published by the Guardian newspaper on June 20 describe procedures the U.S. government uses to conduct surveillance of foreign nationals outside the United States -- for example, the PRISM program -- and to manage information on U.S. persons collected during such surveillance.

According to two Indiana University cybersecurity experts, these disclosures are important to the ongoing "security vs. privacy" debate and underscore the need for legislative action on, and more oversight of, such surveillance activities.

David Fidler

David P. Fidler

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"These disclosures reveal the U.S. government does collect the content of communications of Americans through the PRISM program and, subject to minimization procedures, can analyze, share and retain this information without an individual warrant, including for law enforcement purposes," said David P. Fidler, the James Louis Calamaras Professor of Law and Fellow at the IU Center for Applied Cybersecurity Research. The documents raise questions about public comments made by U.S. government officials that the contents of Americans' communications collected by secret surveillance programs cannot be accessed without a warrant.

Fred H. Cate, distinguished professor and director of the Center for Applied Cybersecurity Research, said, "The process uses blanket authorizations, rather than on a person-by-person basis. By focusing on 'U.S. persons' and geographic locations, the NSA is relying on distinctions that are increasingly difficult to apply in cyberspace. After all, we're lumping European and other foreign citizens and terrorists into the same category."

"The procedures for targeting non-U.S. persons believed to be located outside the United States are unlikely to reduce the concerns expressed by foreign nations, including some of our closest European allies, about the PRISM program," Fidler added.

Fred H. Cate

Cate said the newly disclosed documents reveal a lack of transparency about the collection and use of personal data, and the legal process through which that occurs raises concerns about those activities and highlights the need for a broader debate and clearer laws about surveillance.

"What we see here is the need for more meaningful oversight," Cate said. "I think the documents show a fair amount of good faith in trying to identify who is and isn't an American citizen and trying to minimize what is collected or stored about them, but, whenever there is a close call, the government errs on the side of security."

Fidler said it is now up to Congress to determine whether change is needed.

"Congress created and re-authorized the legal authorities for this surveillance," he said. "It now must confront whether changes are needed to adjust the scope of these programs and tighten oversight over their implementation."

Cate is a Distinguished Professor and the C. Ben Dutton Professor of Law and specializes in information privacy and security law issues. He is a current member of the Department of Homeland Security Data Privacy and Integrity Committee Cybersecurity Subcommittee and can be reached at 812-855-1161 or

Fidler is an internationally recognized expert on international law and cyber security law and policy, among other areas. He is the co-author of "Responding to National Security Letters: A Practical Guide for Legal Counsel." He can be reached at 812-855-6403 or