Why the NSA Surveillance Program is Illegal

The Criminal N.S.A., is an important NYT op-ed today by Jennifer Stisa Granick and Christopher Jon Sprigman, explaining the errors of the Obama Administration’s claim that the NSA’s mass surveillance programs are legal.

Here are a few key paragraphs, but read the whole thing,

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.


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.

If the surveillance is not authorized by law, then the surveillance is criminal. Not that anyone will ever be charged, of course.

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3 Responses to Why the NSA Surveillance Program is Illegal

  1. Vic says:

    I have been surprised by the general lack of outrage about this story, and how what we know now may be just the tip of an unconstitutional iceberg (which we will probably be kept from ever hearing about). I would have expected politicians from both sides of the aisle (though, perhaps with different reasoning) to be bothered by this.

    I won’t add more to this good Op-Ed except to note as I did on another thread that I encourage everyone to start using email encryption because it is your right (at least in this country) and it will annoy the NSA. GnuPG runs on Linux, Windows and Macs and is easy to set up with many popular email clients. Other options exist as well.

    We cannot keep allowing magic words like “terrorism” to justify anything Government wants to do.

  2. Vic says:

    I might note as well that there has already been a ruling by a secret FISC Court that what the NSA was doing under FISA a couple of years ago was unconstitutional. The opinion by that judge (the existence of which was revealed by a couple of Senators) is under seal.

    Should THAT give anyone pause?

  3. f says:

    I was sure your next headline “What Could Possibly Go Wrong” was going to refer to this article: http://www.zeit.de/datenschutz/malte-spitz-data-retention/

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