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John Jonik
© John Jonik

The New York Times has published a scathing editorial titled “The Criminal N.S.A.”, claiming that the spying being done on Americans by the Obama administration and the N.S.A. has gone far beyond even the overly broad surveillance authority granted by the Patriot Act and the FISA Amendments Act of 2008. What has been done in the name of the so-called “War on Terror” is in fact “criminal” and makes a “mockery” of the constitution.

Meanwhile, European officials “reacted with fury” to a report that the N.S.A. spied on European officials and diplomats by bugging their offices and infiltrating their computer networks. The President of the European Parliament said “I am deeply worried and shocked about the allegations. If the allegations prove to be true, it would be an extremely serious matter which will have a severe impact on EU-US relations. On behalf of the European Parliament, I demand full clarification and require further information speedily from the U.S. authorities with regard to these allegations.”

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13 Comments

  1. Duckman wrote:

    Meanwhile, americans will do nothing

    Monday, July 1, 2013 at 6:44 am | Permalink
  2. Iron Knee wrote:

    At least we’re predictable. :-(

    Monday, July 1, 2013 at 6:51 am | Permalink
  3. Hassan wrote:

    Although I been very critical of Obama (and still am), but what is the purpose of leaking spying of foreign nations. That is supposed to be the job of NSA (or whatever government agency). Why EU is surprised even. If US government is not spying on other countries, then we may be in trouble. I am sure EU is spying on US as well.

    Monday, July 1, 2013 at 7:40 am | Permalink
  4. PatriotSGT wrote:

    Hassan – You’re exactly right. Governments are supposed to keep an eye on each other, it’s almost expected. I do not want a government employee browsing my email or occasionally listening into my conversations without a court order and probable cause. 2 completely different things.

    Monday, July 1, 2013 at 8:26 am | Permalink
  5. PO8 wrote:

    Hassan: It is reasonable to assume that the EU spying revelations are an accidental side effect of Snowden carrying a very large cache of documents out of NSA. The European “outrage” is totally synthetic, but can be used to extract “concessions” from the US when needed, and to fire up the political base in Europe.

    Monday, July 1, 2013 at 9:54 am | Permalink
  6. PO8 wrote:

    (NSA: If my analysis above is faulty, would you please correct it? Thanks.)

    Monday, July 1, 2013 at 9:56 am | Permalink
  7. PO8 wrote:

    So where’s our friend who was insisting a couple of days ago that the Obama administration’s actions were all technically legal under the Patriot Act? I’d love to hear their analysis of this article, whose premises seem perfectly reasonable to me. (Indeed, this article more-or-less amplifies my points earler.)

    Monday, July 1, 2013 at 10:01 am | Permalink
  8. Iron Knee wrote:

    The real problem is how do we know if they are legal, if they are all secret?

    Monday, July 1, 2013 at 11:53 am | Permalink
  9. Michael wrote:

    I still think my analysis, in which I claimed these programs were covered by a “veneer of legality” (a phrase which you seemed to appreciate), holds.

    First, in regard to Section 215, I find it interesting that the Times finds it necessary to state that the tangible things must be “‘relevant’ to an authorized foreign intelligence investigation.” I’m focusing specifically on their emphasis of the term “relevant,” because it doesn’t appear in the text of Section 215. The Times article seems to dwell on this notion of relevancy, which, I’m guessing, comes from statements about the USA PATRIOT Act, not the Act itself. Here is the relevant (pun not intended) portion:

    “[The FBI] … may make an application for an order requiring the production of any tangible things … for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.”

    (Note that this last clause reinforces my point that that current NSA programs are not equivalent to COINTELPRO, which was specifically about stifling free speech.) I think that the wholesale collection of phone call metadata (a policy I vehemently oppose, let me reiterate) fits the letter of the law of Section 215.

    I think the Times weakens their argument by playing fast and loose with the terms “data” and “metadata.” They are careful to mention that Snowden provided evidence that “the government has phone record metadata … going back seven years,” but later talks about the government seizing “all of our phone call information” and the claim that “all data is ‘relevant.’” (Yes, I am quite familiar with the privacy implications of metadata. That’s why I am annoyed by the Times’s choice to be sloppy with their language and muddy the waters.)

    As for Prism, the Times points out that, “the NSA 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,” and then lobbies the Fourth Amendment defense, which includes a proscription on “unreasonable searches and seizures.”

    Is this use of the term “acquire” appropriate and could the case be made that Prism is avoiding unreasonable searches and seizures? As much as I am perturbed by this notion and find Prism distasteful, I think the answer is yes. First, does intercepting and storing a copy constitute a seizure, as understood by the Framers? Given that we are talking about intellectual property, it is impossible to say. In the 18th century, a “seizure” entailed a deprivation of use. If you had a gun and I seized it, you would no longer be able to use it for defense of your property. In the age of IP, though, it is not clear if copying data and seizing are legally interchangeable. In short, I’m not sure that Prism constitutes an “unreasonable seizure” because I’m not sure that it would actually be considered a “seizure” at all by the courts. The closest parallel that I think the Framers could have imagined would be for the USPS to open your letters, read them, and make a copy. That falls more under the realm of a search, though.

    So are these searches unreasonable? Specifically, if an algorithm processes the contents of your email, but no human ever reads it, does that constitute a privacy violation? Would the Framers consider that an unreasonable search? My answer is a simple cop-out: I don’t know. As for the legality, my intuition is that the courts would find the searches to be reasonable, given that there are safeguards over who can issue the queries and how. Given the precedent of U.S. v. Jones, I’m not sure that the courts would find Prism to be a violation of the Fourth Amendment.

    Going back to the term “acquire,” yeah, it’s a stretch and a manipulation of language. Is it a legal interpretation? It depends on whether or not the original FISA or the amendments define “acquire.” I frankly don’t know enough case law to say how any court would decide.

    In short, I disagree with the Times’s conclusions. I am not convinced that there is an open-and-shut case that either of the NSA programs run afoul of Section 215, FISA, or the Fourth Amendment. That’s not to say that I agree with these programs. Rather, I very much argue that we need stronger laws for privacy protection.

    Oh, and if you didn’t read it the other day, I still think that we are having the wrong discussion. The focus should be on our overall, irrational response to the threat of terrorism, which is part of the reason that we have these bad laws.

    Monday, July 1, 2013 at 3:14 pm | Permalink
  10. PatriotSGT wrote:

    Point in case to your last point Michael – DHS has dictated that the re-enactors and onlookers for the annual Gettysburg battle will not be allowed to bring back packs unless they are see-through. There’ll be 10,000 actors carrying all manner of firearms and cannons and shooting them all, but back packs to carry water, snacks or Gatorade is out of the question. Just doesn’t make a lick of sense to me, but is another example of government knee-jerk over reaction to a historical event.

    Monday, July 1, 2013 at 5:43 pm | Permalink
  11. Iron Knee wrote:

    I appreciate your comments, Michael.

    Tuesday, July 2, 2013 at 9:48 pm | Permalink
  12. Jon wrote:

    Oh, oops, and it turns out “outraged” EU member nations are also involved in wiretapping. The Chinese, if not exactly up front about their methods, do not pretend outrage when it is discovered other nations are doing exactly the same thing and have been for years if not decades.

    Tuesday, July 9, 2013 at 12:54 pm | Permalink
  13. Iron Knee wrote:

    Jon, but the Chinese can still be outraged about one thing — how much grief we have been giving them over the last few years for spying, when we were also doing the same thing to them (and others). Hypocrisy!

    Tuesday, July 9, 2013 at 3:36 pm | Permalink