The Real Scandal: Not That The NSA Broke The Law In Vast Spying, But That It Probably Didn't
from the the-law-is-broken dept
There’s a good point being raised by a bunch of people lately in reaction to the details of the NSA surveillance revelations from last week. A number of the program’s defenders, including those in Congress and the White House (all the way up to Obama) have defended the program as being legal. And, technically, they may be right. Thanks to a combination of questionable legal rulings and then Congress passing bad and dangerous laws over the past few decades, many of these practices likely are “legal.” And thus, the real scandal here may not be that this data collection was happening in the first place, but that it was legal too.
As much as one might be personally appalled by the notion of the NSA collecting everybody’s call records, disgust doesn’t make something unconstitutional. Rather, the real scandal here is what’s legal — namely, how the surveillance powers enabled by modern technology have been embraced and expanded by Congress and a succession of presidents, and how the Court has failed to develop a robust system for applying the Fourth Amendment meaningfully to the questions of the 21st century.
This is why many of us have been trying to call attention to things like warrantless wiretapping and the FISA Amendments Act and the privacy-destroying immunities of CISPA for years. Because those in power keeping screaming “terrorists!” to get Congress to pass these laws, and then everyone’s shocked (shocked!) when the government goes and does what Congress and the courts have specifically allowed.
The article above points to the infamous Smith v. Maryland case, which among other things established the ridiculous third party doctrine, which we’ve decried for years. This ruling said that by “giving” data (such as phone numbers) to a “third party” (such as a phone company) you had given up any expectation of privacy in that data. That ruling was made in 1979, but is now used to suggest you’ve given up an expectation of privacy in lots of data you give to online services. That needs to go. But, at the same time, Congress is equally guilty of regularly approving massive expansions of the law that enables all of this kind of surveillance.
The “good news” in all of this (if there is any good news) is that if it’s true that everything that was done didn’t actually violate the law, then we just need to fix the laws, and that may actually be an easier problem to solve (though, by no means easy) than dealing with what to do if laws were broken.
In a weird twist, the best-case scenario is that the NSA’s surveillance programs are legal — or, at least, that the NSA believes that they are. The administration has certainly expanded its powers to fill every crack available, but it seems not to have broken any bricks, hewing assiduously to the letter of the law (as far as we know). It may be of small comfort, but overly broad laws are an easier problem to solve than that of a government that does whatever it wants, regardless. Let’s hope that that is not what we have.
Of course, for that to happen, we’d have to have some faith that Congress will actually do it’s job. And that’s such a laughable thought that I almost couldn’t complete that sentence.