Investigating the investigators at the NSA

The US National Security Agency's reviewing of emails, phone calls represents a murky legal labyrinth.

By
August 12, 2013 16:34
3 minute read.
Students at computers

Students at computers. (photo credit: Reuters)

The short answer to whether the US National Security Agency's (NSA) programs for reviewing emails and telephone calls as well as metadata (pieces of information about communications like when and from where an email was sent) arising from them 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.

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The US Congress passed provisions under the Patriot Act which 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.

The 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 public anxiety.

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 Constitution.



For those arguing that the NSA's actions are not only against the Constitution's spirit, but are actually illegal, they focus heavily on the FISA courts almost zero rejection rate. The court has rejected only 11 out of 33,900 in 33 years according to many reports.

They say that the FISA courts cannot properly be considered part of the judicial branch as they only hear the government's side of the story, with no adversary offering a counter view or defense of privacy rights.

Also, they say that the FISA courts work 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 Act-granted 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 restricted.

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 all.

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 play.

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.

For now though, the bottom-line appears to be that the number of objections to the program, including from such unexpected corners like 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.


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