The basic government defense of the NSA's bulk-collection programs—whether it be the list of all the telephone calls you made, your email address book and IM buddy list, or the messages
you send your friends—is that what the agency is doing is perfectly
legal, and doesn’t really count as surveillance, until a human being
looks at the data.
It's what Director of National Intelligence James R. Clapper meant when he lied to Congress.
When asked, "Does the NSA collect any type of data at all on millions
or hundreds of millions of Americans?" he replied, "No sir, not
wittingly." To him, the definition of "collect" requires that a human
look at it. So when the NSA collects—using the dictionary definition of
the word—data on hundreds of millions of Americans, it’s not really collecting it, because only computers process it.
The NSA maintains that we shouldn't worry about human processing,
either, because it has rules about accessing all that data. General
Keith Alexander, director of the NSA, said that in a recent New York Times
interview: "The agency is under rules preventing it from investigating
that so-called haystack of data unless it has a 'reasonable,
articulable' justification, involving communications with terrorists
abroad, he added."
There are lots of things wrong with this defense.
First, it doesn't match
up with U.S. law. Wiretapping is legally defined as acquisition by
device, with no requirement that a human look at it. This has been the
case since 1968, amended in 1986.
Second, it's unconstitutional. The Fourth Amendment prohibits general
warrants: warrants that don’t describe "the place to be searched, and
the persons or things to be seized." The sort of indiscriminate search
and seizure the NSA is conducting is exactly the sort of general warrant
that the Constitution forbids, in addition to it being a search by any
reasonable definition of the term. The NSA has tried to secretly
redefine the word "search," but it’s forgotten about the seizure part.
When it collects data on all of us, it’s seizing it.
Third, this assertion leads to absurd conclusions. Mandatory cameras
in bedrooms could become okay, as long as there were rules governing
when the government could look at the recordings. Being required to wear
a police-issued listening device 24/7 could become okay, as long as
those same rules were in place. If you're uncomfortable with these
notions, it's because you realize that data collection matters,
regardless of whether someone looks at it.
Fourth, creating such an attractive target is reckless. The NSA
claims to be one of the biggest victims of foreign hacking attempts, and
it’s holding all of this information on us? Yes, the NSA is good at
security, but it’s ridiculous to assume it can survive all attacks by
foreign governments, criminals, and hackers—especially when a single insider was able to walk out of the door with pretty much all their secrets.
Finally, and most importantly: Even if you are not bothered by the
speciousness of the legal justifications, or you are already
desensitized to government invasion of your privacy, there is a danger
grounded in everything we have learned about how humans respond when put
in positions of unchecked power. Assuming the NSA follows its own
rules—which even it admits
it doesn’t always—rules can change quickly. The NSA says it only looks
at such data when investigating terrorism, but the definition of that
term has broadened considerably. The NSA is constantly pushing
the law to allow more and more surveillance. Even Representative Jim
Sensenbrenner, the author of the Patriot Act, says that it doesn’t allow what the NSA claims it allows.
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