Why The NSA's Surveillance Program Is Illegal And Unconstitutional

from the period-end-stop dept

As more and more details keep coming out about the NSA's surveillance program, the story keeps coming back around to the key point that many people have been raising all along: How the hell can all of this be legal? The answer may be a simple one: it's not. The administration and various NSA defenders keep insisting that the program is "legal" in that it falls under a law approved by Congress -- though many in Congress insist that they never meant for the law to cover this level of surveillance -- and that it has oversight from the FISA Court, which similarly has approved it. Laura Donohue, a law professor and the director of Georgetown's Center on National Security and the Law, has argued that the program might be "legal" but unconstitutional at the same time. She goes through some of the history of the intelligence overreach, specifically by the NSA. She notes that the whole FISA process was designed specifically to prevent this level of overreach. In the end, she notes the programs may be within the scope of laws that Congress passed, but that doesn't make them Constitutional in the slightest.

To the extent that the FISC sanctioned PRISM, it may be consistent with the law. But it is disingenuous to suggest that millions of Americans' e-mails, photographs and documents are "incidental" to an investigation targeting foreigners overseas.

The telephony metadata program raises similar concerns. FISA did not originally envision the government accessing records.

[....] As a constitutional matter, the Supreme Court has long held that, where an individual has a reasonable expectation of privacy, search and seizure may occur only once the government has obtained a warrant, supported by probable cause and issued by a judge. The warrant must specify the places to be searched and items to be seized.

[....]Americans reasonably expect that their movements, communications and decisions will not be recorded and analyzed by the government. A majority of the Supreme Court seems to agree. Last year, the court considered a case involving 28-day GPS surveillance. Justice Samuel Alito suggested that in most criminal investigations, long-term monitoring "impinges on expectations of privacy." Justice Sonia Sotomayor recognized that following a person's movements "reflects a wealth of detail about her familial, political, professional, religious, and sexual associations."

Meanwhile two other law professors, Jennifer Granick from Stanford and Chris Sprigman, who just moved to NYU from UVA, have written an even more detailed piece for the NY Times explaining why the programs are illegal and unconstitutional. They note that some have claimed the programs are "legal," accepting the administration's claims. However, they argue that even that claim is highly unlikely.

This view is wrong — and not only, or even mainly, because of the privacy issues raised by the American Civil Liberties Union and other critics. The two programs violate both the letter and the spirit of federal law. No statute explicitly authorizes mass surveillance. Through a series of legal contortions, the Obama administration has argued that Congress, since 9/11, intended to implicitly authorize mass surveillance. But this strategy mostly consists of wordplay, fear-mongering and a highly selective reading of the law. Americans deserve better from the White House — and from President Obama, who has seemingly forgotten the constitutional law he once taught.

They detail why each of the two programs are not actually justified by the laws that are used to defend them. First up, Section 215 of the Patriot Act, the so called "tangible things" clause, which was, at one time, known as the "library records" clause as it was used to collect library records to see what books people were checking out, but which is now being used to justify the collection of "metadata" on pretty much every phone call made and (as we just learned) many emails as well.

Even in the fearful time when the Patriot Act was enacted, in October 2001, lawmakers never contemplated that Section 215 would be used for phone metadata, or for mass surveillance of any sort. Representative F. James Sensenbrenner Jr., a Wisconsin Republican and one of the architects of the Patriot Act, and a man not known as a civil libertarian, has said that "Congress intended to allow the intelligence communities to access targeted information for specific investigations." The N.S.A.'s demand for information about every American's phone calls isn't "targeted" at all — it's a dragnet. "How can every call that every American makes or receives be relevant to a specific investigation?" Mr. Sensenbrenner has asked. The answer is simple: It's not.

The government claims that under Section 215 it may seize all of our phone call information now because it might conceivably be relevant to an investigation at some later date, even if there is no particular reason to believe that any but a tiny fraction of the data collected might possibly be suspicious. That is a shockingly flimsy argument — any data might be "relevant" to an investigation eventually, if by "eventually" you mean "sometime before the end of time." If all data is "relevant," it makes a mockery of the already shaky concept of relevance.

From there, we move onto PRISM, which is justified under Section 1881a of the FISA Amendments Act (FAA). This was the part of the law that "allowed" warrantless wiretapping, a program that had been going on for years, but had to be "approved" after the press found out about it. Even though this program granted broad powers for the collection of information (perhaps unconstitutionally so), Granick and Sprigman point out that even PRISM appears to exceed the boundaries of the already too broad law:

Like the Patriot Act, the FISA Amendments Act gives the government very broad surveillance authority. And yet the Prism program appears to outstrip that authority. In particular, the government "may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States."

The government knows that it regularly obtains Americans' protected communications. The Washington Post reported that Prism is designed to produce at least 51 percent confidence in a target's "foreignness" — as John Oliver of "The Daily Show" put it, "a coin flip plus 1 percent." By turning a blind eye to the fact that 49-plus percent of the communications might be purely among Americans, the N.S.A. has intentionally acquired information it is not allowed to have, even under the terrifyingly broad auspices of the FISA Amendments Act.

The Granick and Sprigman piece also points out that to tap dance around the fact that both of these programs clearly violate the laws that defenders claim allowed them, those defenders basically try to redefine the English language -- such that "acquire" now only means "looks at" rather than "acquire", and "target" means target of the investigation rather than the person whose data is collected, and "incidental" means, well, let's not even try to figure out what it means, because it doesn't appear the NSA knows. Donohue, Granick and Sprigman point out that the Supreme Court was pretty clear in US v. Jones concerning widespread, long term monitoring, which suggests these programs are, on top of being illegal, unconstitutional under the 4th Amendment.

Eventually, these programs are going to get tested in court. The government is going to do everything it can to avoid the lawsuits, claiming a lack of standing, national security and whatever else it can think up. But, sooner or later they're going to have to face the music and realize that stomping all over the Constitution and the law isn't what the American public signed up for.