Is NSA’s Metadata Collection Program lawful?

By Nishad Sanzagiri

Is NSA legal?

Imagine this scenario: You receive a letter in the mail. You read it and you then leave it on your desk.  Just then, you hear a knock on your door and see a team of FBI agents outside. They walk in and grab the letter, take a copy of it and walk out. Without your permission, they have just taken something that belongs to you; something personal – thereby violating your privacy.

In this scenario, your best bet would be to sue the FBI in court for violating your Fourth Amendment right to privacy – and if you do so, then there’s a high probability that you’ll win the case.

But what if that same information/letter was online? Could you still have been able to invoke the Fourth Amendment? Not really, no.

As Allison Stanger puts it: “Whatever aspect of your life has been uploaded to the cloud does not currently have the same constitutional protection as the same information stored in a drawer in your home.”

That is one of the main problems with the arguments used by anti-NSA theorists. No matter how immoral the actions of the NSA seem, it’s not yet clear if these actions are unconstitutional – mainly because the Fourth Amendment doesn’t protect information stored online.

Because of the vagueness of the Fourth Amendment regarding this particular issue, the responses of judges on questions of legality of NSA spying have been varied.

Judge William H. Pauley III, for example, ruled that the NSA’s collection of telephonic metadata is lawful. In his ruling, he quoted Justice Jackson’s observation in the Terminiello v. City of Chicago, 337 U.S. 1 (1949) case that: “the Bill of Rights is not a suicide-pact.”

In addition to that, Judge Pauley tried to rationalise NSA’s collection of data by reminding us that even private conglomerates collect data:

“Every day, people voluntarily surrender personal and seemingly-private information to transnational corporations, which exploit data for profit. Few think twice about it, even though it is far more intrusive than bulk telephony metadata collection.”

I don’t think this “if you can give them your data, you can give us your data” logic would work well on the American populace, especially after the Snowden leaks showed that the NSA hacked into Yahoo and Google data centers around the world in order to collect more metadata.

However, there is some good news for the NSA-skeptics. Judge Richard J. Leon, ruled that NSA’s spying was “likely unconstitutional”. In the conclusion of his 68-page ruling, he states:

“This case is yet the latest chapter in the Judiciary’s continuing challenge to balance the national security interests of the United States with the individual liberties of our citizens. The Government, in its understandable zeal to protect our homeland, has crafted a counterterrorism program with respect to telephone metadata that strikes the balance base in large part on a thirty-four year old Supreme Court precedent, the relevance of which has been eclipsed by technical advances and a cell phone-centric lifestyle heretofore inconceivable.”

The “thirty-four year old Supreme Court precedent” referred to above refers to the Smith v. Maryland, 442 U.S. 735 (1979) ruling in which the court came to the conclusion that installing a pen register (an instrument that documents all the numbers dialed from a telephone) would not constitute a breach of the Fourth Amendment.

One of the main arguments of this ruling was that the network a citizen used was not the citizen’s own property. Therefore, the privacy enjoyed by network metadata should not be the same as the privacy enjoyed by the actual conversation using the network in question. Judge Leon dismissed that argument with a simple “times change, rules should change” attitude.

But that’s not the end of it. Having read the ruling in its entirety, I can safely say that the best paragraph is the one on page 64, where Judge Leon very candidly adds:

“I cannot imagine a more “indiscriminate” and “arbitrary invasion” than this systematic and high-tech collection and retention of personal data on virtually every citizen for purposes of querying and analysing it without prior judicial approval. Surely, such a program infringes on “that degree of privacy” that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware “the abridgement of freedom of the people gradual and silent encroachments by those in power,” would be aghast.”

I’m not sure whether the architect of the Constitution would be aghast by current proceedings, but I’m pretty sure that had James Madison even dreamt of how technologically progressed the world would become, he would definitely have included provisions to curb the power of institutions like the NSA. This particular paragraph by Judge Leon is a total slap on the face of those arguing that the NSA’s metadata collection program is constitutional and a necessary tactic in order to safeguard US National Security.

The question of whether what NSA is doing is lawful is one that the judges have to answer – and given what logic or which form of legal analysis each judge takes part in, the judgment is going to be varied. But now that the legal arguments are out of way, the question is about morality.

It is almost certain that the collection of private information of American and non-American citizens and foreign allies is an immoral act; one that is frowned at by almost everybody – ally or not. This can be seen by the outrage shown by European governments when they became aware of the spying programs. This, coupled by the fact that Edward Snowden has become very much of a hero – a brave icon who stood up for what he thought was right (a deed that made him the runner-up for last year’s ‘TIME Person of the Year’ title) has rendered pro-NSA theorists to be viewed as enemies of civil liberties.

It is now to be seen what the government does in order to sway public admiration towards their side. The ordinary citizen can no longer be seen to accept the post 9/11 argument of “we need to take away your civil liberties in order to protect them”; especially not until the government shows more transparency in its programs.

In the battle of Fear v. Truth, fear has triumphed in this scenario, as more and more Pro-NSA arguments frolic around the notion of national security and the ability to counter potential attacks against America.

It is now up to the American population to decide whether they want to give up their privacy to an organisation taking part in an “immoral” act in the name of safeguarding national security or to stop the same establishment from collecting unnecessary information.

Let’s just hope there was an ounce of truth in the statement given by Lisa Monaco, the Assistant to the President for Homeland Security and Counterterrorism when she said that the government “want(s) to ensure we are collecting information because we need it and not just because we can”.

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