In response to the revelations about the NSA surveillance program, the United States Foreign Intelligence Surveillance Court on Tuesday finally offered an explanation for allowing the NSA to keep records of all Americans’ phone calls. Judge Claire Eagan declared the program lawful, stating that any efforts to remove it would have to be political in nature, not legal.
The rationale behind the FISC’s opinion, as Eagan articulated, is grounded on the legal precedent of Smith v. Maryland. In the controversial 1979 verdict, the Supreme Court ruled that seizing a pen register, an electronic gadget that records telephone numbers, did not constitute a search that required a warrant to comply with the Fourth Amendment. Former Supreme Court Justice Harry Blackmun denied that searching a pen register equated to a constitutional violation of privacy rights, a repudiation that supports Eagan’s contentious notion that modern phone data collection is legally justified.
This shaky legal justification is worrisome because of the potential abuse of such data collection it could entail. In an interview given after fleeing Hong Kong, Edward Snowden explained how he feels to be the primary danger behind the mass collection of phone data — namely, that any person can be made to look like a criminal to the untrained eye. A common response to the NSA program is to say, “They won’t be spying on me, why should I care?” But having this record allows those with access to retroactively spy on people and tarnish their reputation.
Despite the legal justification for the NSA programs, the question that remains neglected is the legality of this secret court itself. The existence of such a court is, by definition, opaque and protects itself from criticism. As the public continues to learn about the extent of the NSA spying program, and the other parts of the apparatus that have been created to support it — like the secret courts — it becomes clearer that the potential for abuse is vast even without intent. There is a serious lack of oversight on these programs, and there is no way of knowing what exactly could be done with this data because even the government does not know exactly who has access to the data, or what they have been doing with the information. Even if one believes in the constitutionality and necessity of these programs — two beliefs that require a lot of faith in our government — one still must be worried by the ease with which the data can be accessed and abused by even low-level administrators.
A version of this article appeared in the Thursday, Sept. 19 print edition. Email the WSN Editorial Board at edit [email protected].
