POV: The Legality of the Government’s Surveillance Programs
If we don’t like what the law allows, we should change the law
“POV,” a new addition to BU Today, is an opinion page that provides timely commentaries from students, faculty, and staff on a variety of issues: on-campus, local, state, national, or international. Anyone interested in submitting a piece, which should be about 700 words long, should contact Rich Barlow at email@example.com.
The revelations by Edward Snowden of all-encompassing communications data collection by the National Security Agency (NSA) have led to a debate over security versus liberty. The debate boils down to whether there is a sufficient threat to Americans to justify the NSA collecting billions of data pieces every day.
It is not now, nor has it ever been, illegal for US agencies to monitor the communications of foreign nationals. (It is also true that foreign governments can monitor the communications of citizens of other countries, including Americans.) Prior to the Foreign Intelligence Surveillance Act (FISA) of 1978, it was not even illegal for the US government to monitor the communications of US citizens for national security reasons. Subsequent laws, including the Patriot Act of 2001, the Protect America Act of 2007, and the FISA Amended Act of 2008, required a warrant from the Foreign Intelligence Surveillance Court (FISC) to monitor the communications of a US citizen, green card holder, or corporation in the United States and abroad, or a foreign national in the United States. Foreign nationals outside the United States have no protections even if their communications run through the United States. In the age of fiber optics, communications travel internationally and do not distinguish origin or citizenship.
In order to obtain a warrant from the FISC to monitor the communications of a US person, the attorney general and the director of national intelligence must demonstrate suspicion that that person is an agent of a foreign entity or power. The law, largely written by Senate Intelligence Committee chairwoman Diane Feinstein and supported by Barak Obama, then a US senator, prohibits targeting a person outside the United States in order to gain access to a target inside the United States. The law requires destruction of information not pertinent to the warrant’s justification, training of personnel to ensure no warrantless targeting of US persons, and government review of, and submission of, compliance with all aspects of the law to Congress. The law mandates annual reviews for compliance by each agency to the attorney general, the director of national intelligence, the FISC, and Congress on all issues regarding US persons.
Global communications exploded with the introduction of fiber-optic cables. With the advent of fiber optics, listening posts on US installations and military bases overseas quickly became obsolete. The NSA program collects the data for access if it is needed. If there is suspicion of terrorism, the data is there to exploit quickly, and there is every reason to respond quickly. To repeat, monitoring of foreigners outside the US is not illegal and does not require a warrant, and monitoring of US persons is possible only with a warrant.
NSA programs for data collection are legal. The right to privacy within this law is guaranteed through oversight within the US government and by the Congress. In 2001, the Congress passed the law giving the NSA the tool to monitor data, and it has renewed the law twice since then. US security is based on several pillars, only one of which is signal intelligence. The others are defense, diplomacy, economic viability, and other modes of intelligence. Abuse of government power can and does happen, but to date, has not occurred in any significant way. What often is forgotten or ignored is that NSA officials are also US citizens, and hundreds of attorneys are in place at the NSA to remind the agency of the law.
We cannot have 100 percent security, but we do have excellent security. We cannot have 100 percent privacy, but we do have privacy and the right to privacy. If justified now or in the future, Congress can change or modify the law; that is what this discussion should be all about. Congress passed the law as it now stands; it can change it to protect to a greater extent the privacy rights of US persons, or if warranted, give the executive branch even more authority to ensure security with increased oversight.
Joseph Wippl, a former Central Intelligence Agency officer and a College of Arts & Sciences professor of international relations, can be reached at firstname.lastname@example.org.