The details are harrowing: The NSA is
collecting
vast tranches of information about your calls and conversations. A
secret court, ruling behind closed doors, gave them permission. Is the
government overstepping its bounds?
That
isn’t an easy question to answer. The National Security Agency ordered
Verizon Business Services to hand over daily “metadata,” or data about
data. They are collecting information about all phone calls happening
over Verizon’s network: telephone numbers, location data, call length.
They did not record the names of whom spoke on, or the content of their
calls.
In a normative sense, such an unusually broad act of surveillance is beyond the pale — or at least, probably should
be. The reality, though, is that what the NSA did is perfectly legal.
Moreover, Congress even went out of its way to keep the legal
justification for it a secret.
The
problem isn’t that the NSA is obeying the law: the law itself is the
problem. And no matter the public outcry now, we not only supported that
law when it was being created, we probably won’t change anything now
that its most extreme practices are being exposed.
Congress Created Broad Surveillance Powers
In the frenzied aftermath of 9/11, Congress passed an expansive piece of legislation called the
USA PATRIOT Act.
A key provision of this act allowed intelligence agencies to begin
collecting information on U.S. citizens — a procedure banned since the
1975
Church Committee restricted it after outcry over the CIA’s spying on domestic political groups.
Though
civil libertarians opposed the Patriot Act, it nevertheless passed with
wide margins. But the Foreign Intelligence Surveillance Act still
restricted the capacity of intelligence agencies to directly snoop on
Americans, establishing the so-called FISA wall between the FBI and
foreign-focused intelligence agencies. About a year after the Patriot
Act passed, in 2002, the Department of Justice successfully
won a court appeal removing that wall separating intelligence and law enforcement.
Congress
soon took more action to give new authorities to the executive branch
for counterterrorism missions. In 2004, Congress passed the
Intelligence Reform and Terrorism Prevention Act,
which modified material support laws restricting Americans’ interaction
with designated Foreign Terrorist Organizations. The new law created
additional surveillance and investigation authorities for monitoring
U.S. citizens suspected of aiding terrorist groups abroad.
The next year, in 2005, the
New York Times broke the
NSA wiretapping story,
where, without first seeking a warrant, the NSA had eavesdropped on
phone calls involving U.S. citizens. In the outcry that followed,
Congress granted the telecom companies
retroactive legal immunity from prosecution in 2008, laying the groundwork for the NSA’s continued expansive eavesdropping and data collection.
Some
senators have tried to raise the alarm about this dramatic expansion of
surveillance authorities. In 2011, Senators Mark Udall (D-CO) and Ron
Wyden (D-OR) tried to
add an amendment
to the reauthorization of the Patriot Act limiting how much the
government could secretly surveil citizens. The Senate — Democrats and
Republicans alike — voted to remove the amendment.
Then,
in December 2012, Senator Jeff Merkley (D-OR) tried to add an amendment
to that year’s defense bill prohibiting secret legal rulings in
investigations against U.S. citizens. It, too, was
voted down by both Democrats and Republicans.
Congress, it seems, not only likes secrecy, it goes out of its way to make sure the government operates in secret.
Mike Rogers, Chairman of the House Permanent Select Committee on Intelligence, told
Politico that this surveillance program — which has gone on for years —
thwarted
a domestic terrorism plot. He did not give details.Dianne Feinstein,
who chairs the Senate Select Committee on Intelligence, has
defended the program as a long-running counterterrorism operation. It enjoys bipartisan support.
Legal Data Collection
What
the NSA did was perfectly legal: created through and approved by all
three branches of our government, with both parties supporting it under
Presidents Bush and Obama. It is the direct consequence of over a decade
of expanding surveillance powers.
The kind
of data the NSA collected — the metadata of calls — could be used to
personally identify some callers. But that’s also apparently
not standard practice at the NSA, according to reporters who have investigated this.
This
is not mass eavesdropping as we traditionally understand it. Rather,
metadata is used to establish patterns of behavior — what normal calling
activity looks like, so that abnormal activity can be isolated and
investigated further. That means calling your mom to ask how she’s doing
is one thing, while a rapid succession of calls from random numbers to a
single source in a short period of time might invite scrutiny.
I
will be shocked if any congressmen or senators are voted out of office
for their involvement in the last decade of granting expansive
surveillance authorities to the government. Despite never polling well,
Americans have also
never raised much of a fuss about surveillance of other groups.
Moreover, we willingly hand over our data to companies all the time. People for the most part are perfectly happy to let Google
stripmine their private lives
for neat services; letting the government sift that same data for
intelligence about terrorist attacks is, judging by the outcry, beyond
the pale.
There remain serious questions about whether this kind of investigation is in line with American values. As the
scope
of the government’s surveillance powers becomes plain, it’s certain to
spark further debate. There is no question, however, about its legality —
Congress made sure it is perfectly legal. As we continue to ask why the
government has such expansive control of our communications, it is
important we also demand answers from our elected representatives who
granted it.
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