How the NSA is Breaking the Law
By Ian Huyett
Edward Snowden has taken flight across the globe, and John Kerry – who has called Snowden a “traitor to his country” – is hard at work clumsily exacerbating the situation, assuring Russia that there will be “consequences” if it refuses to cooperate. It’s a plot lifted straight from a Hollywood techno-thriller, albeit with less competent villains.
Yet this international intrigue may be distracting Americans from what should be, at least right now, a more pressing issue: the NSA is unmistakably breaking the law.
Of course, as anyone who looks at the U.S. Constitution can plainly see, the NSA’s surveillance program violates the Fourth Amendment – which calls for warrants “particularly describing the place to be searched, and the persons or things to be seized.” The agency’s sweeping court order requires Verizon to give all of its phone records to the NSA on “an ongoing, daily basis” – making it precisely the sort of open-ended writ of assistance that the Fourth Amendment was created to proscribe.
It’s easy to become confused, however, when confronted with the so-called “third party doctrine.” A defender of the NSA need only reference the “Stored Communications Act” and the Constitution can suddenly seem lost among a hopeless clutter of precedent. This confusion has misled many Americans into assuming that the NSA’s actions have a firm legal grounding somewhere amidst the paperwork.
Fortunately, events from just two months ago can help us easily understand Fourth Amendment case-law. Back in April, the ACLU obtained documents suggesting the IRS reads Americans’ emails without warrants. The IRS responded by issuing an official policy statement (4-120), promising to follow the holding in U.S. v. Warshak (6th Cir. 2010) and seek search warrants for any emails it wanted to read thereafter.
In Warshak, a circuit court found that the government violated Steven Warshak’s Fourth Amendment rights by reading his emails – even though Warshak had entrusted his emails to a third-party: his internet service provider. The court pointed out that postal mail is strictly protected by the Fourth Amendment even when it is entrusted to dozens of different mail carriers. Affording less protection to emails, it argued, would “defy common sense.” Moreover, it warned that “the Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish.”
Besides being so broad as to defeat the point of even asking for court approval, the NSA’s surveillance violates a reasonable expectation of privacy that precedent shows we have. The Fourth Amendment has met the challenges of postal mail, landline phones, and email. If the Constitution still holds any power, it will meet the challenge of cell phones as well.
Unfortunately, the facts of this case give us little reason to be optimistic. In March, James Clapper – the Director of National Intelligence – assured Congress that the NSA does not collect any type of data at all on millions or hundreds of millions of Americans. While this is a clear-cut case of perjury, Clapper’s lie also constitutes a more ominous crime.
There is a broad consensus that the right to oversee national agencies is implied in Congress’ enumerated powers. By obstructing Congress’ ability to properly do so, Clapper appropriated for himself powers that our founders separated. At the moment of Clapper’s lie, the United States was not functioning as a republic. The Obama Administration’s decision to stand by Clapper suggests, discouragingly, that they don’t much care whether or not it does.