Is the NSA Surveillance Legal?
I have three arguments:
1) The written law does not permit mass surveillance. Any attempted justification of the NSA’s surveillance must make a positive case for which laws and which statutes permit the NSA to undertake the type of surveillance it has been doing. Generally, apologists turn to the Patriot Act. But even under the Patriot Act, as Jennifer Granick and Christopher Sprigman point out, Section 215 states that the government can only gather data upon “showing reasonable grounds that the things sought are “relevant” to an authorized foreign intelligence investigation.” The data the NSA gathers must be relevant to a specific investigation. Clearly, there is no way that the data collected by mass surveillance could all be relevant to specific investigations. Mass surveillance is an indiscriminate collection of data; as such, it will collect information from not just suspects, but non-suspects as well. Finally, as Dave Sirota points out, even the courts have found the NSA’s activities illegal 4 different times.
3) The Constitution does not permit mass surveillance. Article I Section 8 of the Constitution lays out the specifically enumerated powers of the Congress. In other words, the Constitution is set up in such a way that the correct way to think about it is that “the government may only do this if we specifically say so” rather than “the government can do whatever it pleases unless we say otherwise.” So, not only must the surveillance not violate the 4th amendment – there must clearly be a positive case for it as well under the Constitution. Under Article III, Section 8, which enumerated power does the ability of the goverment to surveil its citizens (or more properly, the ability of Congress to legislate such a power) fall under?
Somewhat off-topic: A common objection to this argument (when it is used generally) is that the Preamble states that the Constitution was created to “promote the general welfare” and even under Article I, Section 8, that “[t]he Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States” (emphasis mine), suggesting that the government can do as it wishes as long as it is promoting the common good. But this is not an enumerated power, it is a purpose. If the words of the Preamble gave powers to the government, why would the founders create a section for specifically enumerated ones? Moreover, if such a wide, flexible net of powers (so anything that might help the general welfare is lawful?) was the founders’ intent, why would they go through the trouble of specifically enumerating them? Doesn’t that mean Article I Section 8 is a useless and redundant section? Both Madison and Jefferson emphasized this point. In addition, repeatedly at the state ratifying conventions, the founders told the states that the federal government would only have powers “expressly delegated” by the Constitution.
Questions or comments? What do you think?