The short answer to whether the US National Security Agency’s (NSA) program for
reviewing emails, telephone calls and metadata (information about
communications, such as when and from where an email was sent) is legal would
appear to be: yes.
Unlike some past controversies about the balance
between protecting the nation’s security and privacy rights, no one is saying
that the executive branch went out completely secretly on its own (though the
scope of the program has shocked many even in Congress) with the new
far-reaching checks into people’s personal lives.
The US Congress passed
provisions under the Patriot Act that at least arguably authorize the program,
though there is a spirited debate as to what extent the program went beyond the
intentions and even imagination of the legislation’s drafters.
judicial branch is also involved, with the FISA court (Foreign Intelligence
Surveillance Act) – a special court for reviewing classified national
security-related search warrants – having approved every email, telephone and
metadata search that the NSA has performed (or at least a general policy
allowing the type of search.) US President Barack Obama, a Democrat, who was
highly critical alleging national security overreach in invading privacy by his
predecessor George W. Bush, held a major press conference on Friday in which he
essentially assumed the program’s legality, and at most, appeared ready to
tinker with the details and better inform the public about the program to reduce
So what is there to debate? Why did a rare bipartisan
revolt of almost half of the US House of Representatives add new restrictions to
the NSA’s searching powers and why do recent polls show an increasing number of
Americans opposed to the breadth and volume of the NSA’s searches? Primarily,
the objections are that even if all three branches of government to some extent
have approved the NSA’s far-reaching powers, they have all gone astray of core
US constitutional protections of individual citizens from “searches and
seizures” other than those carefully tailored, and that the NSA’s actions are
still inherently illegal, or at best against the spirit of the
Those arguing that the NSA’s actions not only are against
the Constitution’s spirit but are actually illegal focus heavily on the FISA
court’s almost zero rejection rate. The court has rejected only 11 out of 33,900
searches in 33 years, according to many reports.
They say that the FISA
court cannot properly be considered part of the judicial branch, as it only
hears the government’s side of the story, with no adversary offering a
counterview or defense of privacy rights.
Also, they say that the FISA
court works too closely with the Department of Justice, which leaves no real
objective check on the process.
As to the spirit of the law, some say
that government is severely stretching its interpretation of the Patriot
Actgranted powers by saying that only if a human being reviews your email,
telephone call or metadata can the state’s power to search even be
In this view, if tons of your personal information has been
stored and analyzed only by a computer, you have not actually been “searched” at
Critics say that since the concern is abuse of that information, as
long as that information is possessed by the state, it can be easily accessed
and abused even if it has not yet been reviewed.
They also object to a
compromise put forward in which private email and telephone giants would be
required to maintain their own storage of such information should the NSA at
some point desire it.
Critics say that all such deals have come with a
“back-door” provision, meaning that the NSA could essentially access the
information being held privately through a built-in electronic back door, as
easily as if it was in its own computers, thus leaving the abuse scenario in
Those who object on the grounds of the spirit of the law also say
that it just makes no sense to invade such a voluminous amount of private
information for such a small number of targets and payoffs.
though, the bottom line appears to be that the number of objections to the
program – including from such unexpected corners as Republican Congressman James
Sensenbrenner, who helped draft the Patriot Act – are likely to lead to some
additional safeguards, while keeping the overall program intact, in light of its
equally strong bipartisan support and significant claims to legality.