BU Today

Opinion

POV: The Legality of the Government’s Surveillance Programs

If we don’t like what the law allows, we should change the law

5

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 jwippl@bu.edu.

“POV” 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 barlowr@bu.edu.

5 Comments

5 Comments on POV: The Legality of the Government’s Surveillance Programs

  • Michael Stinnett on 09.18.2013 at 10:01 am

    Are hundred of lawyers at the NSA there to help remind them of the law or to help them bend the law?

  • Douglas Labov on 09.18.2013 at 10:17 am

    Though there are some good points made here, it is overall difficult to talk about, and indeed the piece lacks in certain areas, the legality of this program without referring to the supreme law of the land, The U.S. Constitution.

    • IR Grad on 09.18.2013 at 1:07 pm

      Hi Douglas, just keep in mind that this piece is not casting judgement on whether or not the NSA’s programs are ethical, but only on the legality of their actions. While you are correct that the Constitution provides ultimate rights, US Laws are actually the “supreme law of the land”. If you are caught by the police driving a fully-armed main battle tank, you cannot argue that their arrest is illegal since it is illegal to drive around an armed tank domestically. That law was created by the legal system, not by the constitution. You may argue that your 2nd Amendment right covers your right to own a tank, but right there you are arguing that the LAW is illegal, not that your actions are legal under the law.

      The point that this article makes is that the NSA has not done anything wrong or against the law like some people are claiming. Instead, the point is that we should direct our anger not at the NSA, but at congress since they were the ones who created these laws initially.

      TL;DR: Don’t hate the playa, hate the game.

  • A.C. on 09.19.2013 at 8:59 am

    Either Dr. Wippl thinks we are all very stupid, or he is very naive (which I doubt).
    He says: “Subsequent laws…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”, and adds that “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”. Seriously? Really? Edward Snowden came out precisely because he realized that none of these provisions were respected by NSA, and that random people (like himself) with no legitimacy (let alone the attorney general’s authorization!) were entering the private lives of Americans without necessary justifications or supervision. He was witnessing the abuse of the agency’s power to operate, vis-a-vis the norms that Dr Wippl mentions in the article.

    I also suggest Dr. Wipple read the latest article by Greenwald and Poitras in “The Guardian” newspaper. He will find therein the copy of a Memorandum of Understanding between the US and Israel, whereby all the *raw* data gathered by the NSA about US citizens are simply turned over to Israel as they are, unfiltered and unchecked. Should the American citizen feel ok with this as well? I am sure a foreign country, like Israel, will certainly make responsible use of US citizens’ data, in line with the US constitution…

    And lastly: Dr. Wippl tells us we should feel safe and reassured because, after all, “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”. You must be joking, Dr. Wippl, right? I believe you are talking about people like the zealous and respectful attorneys from G.W. Bush’s DoJ who distorted the law and constitution so artfully to justify the use of torture in Iraq and Afghanistan. Oh yes, I feel much more reassured now.

  • nathan on 09.23.2013 at 2:39 pm

    Dr. Wipple starts out with a straw man argument “until FISA it wasn’t even illegal to monitor US citizens” ignoring the 100 year old legal traditions of ‘Right to Privacy’ expostulated by Supreme Court Justice Louis Brandeis.
    – - – He is basically making the same arguments as the folks who want to maintain unethical campaign contributions. “We found a legal loophole, it’s the people’s fault if they can’t pass laws to plug this loophole, or the next one we exploit, or the next one.”
    - – - He ignores the apparently routine participation of the NSA in the DEA scandal of gathering information and then ‘redoing’ the police work to create a false ‘offical’ paper trail of how they did a common drug bust. And that the track record of all the post 911 surveilance has resulted in much more domestic low level crime enforcement than even the investigation of terrorism.
    - – - Maybe you should put in “HONEST” and “DISHONEST” buttons for opinion pieces. This level of intillectual dishonesty is EXACTLY what I have come to expect from the CIA, and why many Americans don’t trust their agencies that spy.

Post Your Comment

(never shown)