Is the NSA Surveillance Legal?

Absolutely not.

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.

2) The 4th amendment does not permit mass surveillance. The 4th amendment states the right to privacy of all US citizens. Government can only collect private information with a warrant. Relevant example: when you sign a contract with a telecommunications provider, there’s a section about its “privacy policy” that states that the telecommunications provider will not give any of your metadata or the content of your calls away unless it is to the government and the government has a warrant for the information. Clearly, mass surveillance means that government does not have a warrant for every record it is collecting. Another reason I bring up the privacy policy is because consumers are signing a voluntary contract with providers, a contract that explicitly states that certain information is being kept private. Therefore, this information is still private information. Just because you’re “sharing” this information with the phone company doesn’t mean they can give it to whoever they want, because it has been stated in the contract that they cannot do so.

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?

Photo Credit: Pan-African News Wire File Photos via Compfight cc


Posted on July 14, 2013, in Politics and tagged , , , , , , , . Bookmark the permalink. 1 Comment.

  1. Just as an example, here is a quote from Madison pointing out the absurdity of the “general welfare” clause being a grant of power:

    “It would be absurd to say, first, that Congress may do what they please, and then that they may do this or that particular thing. . . . In fact, the meaning of the general terms in question must either be sought in the subsequent enumeration which limits and details them, or they convert the Government from one limited, as hitherto supposed, to the enumerated powers, into a Government without any limits at all.” (via 33 Questions About American History You’re Not Supposed to Ask)

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