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.

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Comments on “Why The NSA's Surveillance Program Is Illegal And Unconstitutional”

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out_of_the_blue says:

Yeah, but there's hundreds of billions at the least that cause it.

We don’t even know the extent of NSA / CIA / military intelligence budgets — some of which is “self-funding” through the drug trade, besides hidden sources of using info gathered to play the stock markets, blackmail, whatever other perfidy that bright but amoral minds can think up — so a “goddamn piece of paper” as George Bush described the Constitution don’t have much sway.

Anonymous Coward says:

Re: Re: Yeah, but there's hundreds of billions at the least that cause it.

He’s simply throwing unsubstantiated claims on the fire (a la Alex Jones) to try to make the matter seem even worse than it already is. blue, there is PLENTY of ACTUAL evidence to support that these people are engaged in nefarious activities against the American public without resorting to speculation and parroting conspiracy theorist rhetoric. The problem with adding these sorts of claims to the discussion is that it 1. undermines your credibility and 2. gives the defenders something to use to distract people away from the actual activities that they have no legitimate defense for.

CK20XX (profile) says:

Re: Yeah, but there's hundreds of billions at the least that cause it.

Well, then it falls upon us to change things. If we sit by and do nothing, that’s like passive approval of the crimes that happen daily.

We shouldn’t have to fight to not be spied upon, but women shouldn’t have had to fight for the right to vote either. They should have had it from the start.

Anonymous Coward says:

Re: Yeah, but there's hundreds of billions at the least that cause it.

I’m beginning to think that out_of_the_blue’s comments get flagged simply because of who he is, and not necessarily because of what he says. It’s like, hey, it’s OOTB, let’s flag his comment! Doesn’t matter what he says, it gets flagged just because it’s from OOTB.

Pragmatic says:

Re: Re: Yeah, but there's hundreds of billions at the least that cause it.

It’s actually because she’s a batshit insane conspiracy nut with a girl-boner for Google and Mike …in that order. The insanity in the post we’re responding to now is an unsubstantiated rant against the CIA that has little to do with the content of the article she’s commenting on.

She comes in here every day to piss on the articles like a dog marking its territory. That she occasionally has lucid moments only serves to underscore the crazy.

Anonymous Coward says:

the other thing the government has on it’s side is the gutless fuckers in the UK government thinking that everything that the NSA has been doing, then sharing with the UK, (or perhaps the other way round?) is perfectly fine. however, i’ll bet a dime to a dollar those who are in favor are not on the surveillance list or think they are not. if they were to find out they were on the list, i bet they would kick up as big a stink as everyone else is!

Rekrul says:

If this ever does get to court, the government will probably pass a law making it retroactively legal.

In fact, I wouldn’t be surprised if someone proposes a 28th amendment to the Constitution which says that the government gets to decide where and when the Constitution applies. I mean, they already ignore it most of the time, so I wouldn’t put it past them to actually put that sentiment into law.

Anonymous Coward says:

Re: Re:

@ Rekrul

Caesar Augustus was very careful to preserve the form of the Roman Republic, even as he eviscerated it. It is much easier to maintain power over citizens who believe they live in a constitutional republic, rather than those who are certain they are being oppressed. The NSA leaks have revealed a broad segment of the US governmental apparatus that takes this Augustan approach. The open question is whether Americans–and frankly, citizens of all nations in our globally-connected world–will allow this to continue. Does the Republic exist, or is it dead in all but name?

John Fenderson (profile) says:

Re: Re: Re:

The open question is whether Americans–and frankly, citizens of all nations in our globally-connected world–will allow this to continue.

I hope that my fellow Americans will join in the effort to regain control of our nation, but if we don’t do it, the rest of the world surely will. The only question is when and how?

Since the United States is explicitly modeled in large part on the Roman Empire, it will be no surprise if we follow that path to the same conclusion.

Anonymous Coward says:

Re: Re:

I do think a constitutional amendment is necessary to shore up at least some dubious arguments for legality and since mass surveillance is a bipartisan golden goose…

The problem is even deeper ingrained in the function of the US secret service. By being secret and keeping everything in their sphere secret, they are granted all benefit of the doubt since nobody is afforded as a defender against the charges! Without serious restrictions on what can be collected and the scope, it is a de facto complete damnation of specifically the fourth amendment and for companies being strong armed to help them it is a serious first amendment problem (should apply given that companies are afforded almost the same rights as people).

By increasing transparency on everything around FISA, its legal framework, jurisprudence and instating some public communication reports from these agencies on its opinion on safety, you can still have a secret service without nuking the fourth completely to oblivion as it is now.

The problem is getting the politicians to draw those lines: Since nobody but the secret service knows how it works, including a public entity to rewriting the rules would seem very hard without giving up state secrets. Therefore you will get a lobby from different parts of secret services fighting internally on some detail, while they can all agree that they need more funds and less red tape. Since there is nobody with a differing opinion on the overall lines the politicians will of course say “yes sir” and give them what they want!

Anonymous Coward says:

Re: Re:

Well, let’s take the first amendment. It begins, “Congress shall make no law…”. The implication here is that Congress can’t do certain things…but the states can (wink, wink). One problem with the constitution worshippers is they tend to think, “federal government bad…state government GOOD!”. They apparently fail to realize that it’s all government, and that state government can be just as oppressive, and even moreso, as the federal government.

Anonymous Coward says:

Re: maybe there is a secret dictionary....

Someone needs to create a parody site of dictionary.com or the Urban Dictionary that chronicles government definitions for words as interpreted by their usage in public statements by government officials where people can look up “the federal definition” of such words. That would be epic. 😛

Anonymous Coward says:

Re: Re:

I think you’re right, at least that’s how its supposed to be.

Honestly, all of these secret laws and secret interpretations are themselves probably illegal and therefore invalid if this were to go to an impartial court.

Laws subsequent to the bill of rights aren’t supposed to superceded the bill of rights… but what does the Constitution know.. its just a stupid sheet of paper…

Anonymous Coward says:

Re: Re: Re:

It’s also fairly funky that the NSA (part of the executive branch) is using secret interpretations of the law (supposedly from the judicial branch) that it’s unwilling to explain to the legislative branch. Even if the laws themselves were somehow found to be legal and constitutional, they’ve still pissed all over the concepts of “separation of powers” and “checks and balances”.

They’ve not only violated the constitutional rights of the people, they’ve violated the constitutional rights of the legislature, too.

Phil62 says:

“[….] 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.”

The very fact that the surveillance was kept secret from the public would give an individual a reasonable expectation of privacy.

Anonymous Coward says:

And it comes down to what I’ve been raising cane about in these last few days about officials not coming clean and owning up to what they are actually doing.

This whole business has been a violation of everything we are supposed to be about and stand for. Yet word games by these officials…especially Obama does not make it right nor legal.

If you think for one minute all this data was gathered and isn’t going to be used, maybe I need to move to your planet.

Former Stasi Lieutenant Colonel Wolfgang Schmidt is envious of the spying done by the US on its own people compared to what he was limited to by the technology of the time. He said that they were limited to 40 people. However, the idea was, if they were looking at someone, there had to be a reason. So minor and innocent comments were made into something that never was. But read it for yourself…


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