Jennifer Stisa GranickÂ (director of civil liberties at the Stanford Center for Internet and Society) and Christopher Jon SprigmanÂ (professor at the University of Virginia School of Law) make a point in their NYTimes Op-Ed, “The Criminal N.S.A.“, Â that I have not seen from many others:Â “It’s time to call the N.S.A.’s mass surveillance programs what they are: criminal.”
To date, most arguments I have come across claim that what the NSA is doing should be illegal, but currently isn’t (at least for reasons currently unknown to me). The other argument I’ve seen a lot on the Internet is citizensÂ crying foul that theÂ governmentÂ would ever be able invade their private space (somehow ignoring the provisosÂ of the 4th Amendment).
Granick and Sprigman’s article is worth pointing out because it argues that what the NSA is doingÂ is currently and has always beenÂ illegal, while alsoÂ acknowledgingÂ theÂ provisosÂ of theÂ 4th Amendment.
Unfortunately, the opinion piece itself is lacking some grit, which I find frustrating as it seems to drag on without adding more substance. Here are theÂ relevantÂ points:
Congressional watchdogs – with a few exceptions, like Senator Rand Paul, Republican of Kentucky – have accepted the White House’s claims of legality. The leaders of the Senate Intelligence Committee, Dianne Feinstein, Democrat of California, and Saxby Chambliss, Republican of Georgia, have called the surveillance legal. ….Â 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.
Legal issues with the PATRIOT Act :
The government claims that under Section 215 [of the PATRIOT act] 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.
Legal issues with the FISA Amendments Act (FAA):
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. […]Â James R. Clapper Jr., the director of national intelligence, told Andrea Mitchell of NBC, the N.S.A. uses the word “acquire” only when it pulls information out of its gigantic database of communications and not when it first intercepts and stores the information.
Why what the NSA doing is illegal:
The Fourth Amendment obliges the government to demonstrate probable cause before conducting invasive surveillance. There is simply no precedent under the Constitution for the government’s seizing such vast amounts of revealing data on innocent Americans’ communications.