Legally Justifying NSA Surveillance of Americans

Kit Walsh has an interesting blog post where he looks at how existing law can be used to justify the surveillance of Americans.

Just to challenge ourselves, we’ll ignore the several statutory provisions and other doctrines that allow for spying without court oversight, such as urgent collection, gathering information not considered protected by the Fourth Amendment, the wartime spying provision, or the president’s “inherent authority” for warrantless spying. Let’s also ignore the fact that we have general wiretaps ala the Verizon order on phone metadata and Internet traffic that we can fish through in secret. Let’s actually try to get this by the FISA Court under 50 U.S.C. §§ 1801-1805 for electronic surveillance or § 1861 for documents and records.

Tags: courts, NSA, privacy, surveillance

Posted on September 20, 2013 at 12:01 PM • 24 Comments

Comments

Brian M. • September 20, 2013 2:36 PM

So the NSA can spy on any “agent of a foreign power.” And they can spy on the people who communicate with that agent. And those people who communicate with someone who communicates with an “agent of a foreign power.”

So by six degrees of separation, that means the NSA can spy on the entire world population, right?

Mailman. • September 20, 2013 2:58 PM

@Brian M.: I hear the NSA has 17 agents spying full-time on Kevin Bacon.

David • September 20, 2013 3:02 PM

@Brian M:

My understanding is they’re only allowed to go 2 (or 3?) hops. Which is still basically everyone, yes.

NobodySpecial • September 20, 2013 3:23 PM

But any organisation that has foreign members is a target and so is anybody who communicates with that organisation.

Clive Robinson • September 20, 2013 4:06 PM

@ Brian M,

But not the Oaki from Miscokei

Him not never been on no grid.

Corwin • September 20, 2013 4:16 PM

-“So we have that law that says we can …”
-“Fourth amendment, bitch.”
-“But this jurisprudence says that actually…”
-“Fourth amendment, bitch.”
-“This secret interpretation of that law under the secret court you can’t see, over there…”
-“Fourth amendment, bitch.”

Bauke Jan Douma • September 20, 2013 4:29 PM

Brilliant!
Guilty by association!

Alien • September 20, 2013 5:42 PM

So I am a US person (a resident but not a citizen), and over the last 12+ years I have communicated with hundreds of people worldwide, including family and childhood friends, people who may have worked with me 20+ years ago, as well as people I have never met but who may have the same pastimes etc. So is it 3 hops from all of them too just because they may have replied to me? Most of these people, if not all, are harmlessly going about their lives totally unaware that US (un)law applies to them (as was I, I mean I did submit my parent’s birth certificates, every place I lived and all schools attended since the age of 5, endless fingerprints and I do faithfully wear my eartag). Gross infringement. And as for giving unfiltered intelligence to Israel, I’d kind of preferred my own country do that, y’know, just the principle of the thing.

Figureitout • September 20, 2013 7:05 PM

Well this encourages isolationism.

Stanislav Datskovskiy • September 20, 2013 7:07 PM

The sooner everybody understands that NSA (and the “intelligence community” as a whole) is sovereign – and as such, not really bound by law – the better.

Quis custodiet ipsos custodes? and all that.

If someone is unhappy with the sovereign’s behavior, they will have to make their objections stick through purely-technological means: ultima ratio regum.

Legal wrangling will accomplish nothing, because the snoops can simply ignore laws – and when convenient, quash court proceedings under sovereign privilege, simply to remind the public who is actually in charge.

NSA & friends will do whatever they want, to whomever they want, for as long as they want – unless the would-be victim can put some genuine physical obstacle in their path (such as non-compromised crypto, running on clean hardware.)

DB • September 20, 2013 10:14 PM

Here I thought that US law only applied in the US, and so all warcrimes must be perfectly legal, as long as not committed in or aimed at the US… Isn’t that the reasoning people are using to make the whole Bill of Rights not apply abroad?

JohnP • September 21, 2013 10:06 AM

The only way to stop the NSA is to take away their funding.
They’ve already decided that the 4th amendment doesn’t apply to them AND courts have ruled along with that.

Is it time for another revolution to ensure the US Govt understands we demand our rights of privacy in “all papers and all communications?”

dong • September 21, 2013 11:24 AM

Unfiltered information to israel is the replacement of the b’nai b’rith spying organization that used to send that info to the political masters in tel aviv

MarkH • September 21, 2013 3:09 PM

Legal Authorities upon which NSA Relies

Ecclesiastes 8:4 Where the word of a king is, there is power: and who may say unto him, What doest thou?

Rex non potest peccare (the King can do no wrong)

“When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”

Dr. Moreau: What is the law?

Sayer of the Law: Not to eat meat, that is the law. Are we not men?

Dr. Moreau: What is the law?

Sayer of the Law: Not to go on all fours, that is the law. Are we not men?

Dr. Moreau: What is the law?

Sayer of the Law: Not to spill blood, that is the law. Are we not men?

Dr. Moreau: Mr. Parker, do you know what it means to feel like God?

Dr. Moreau: Have you forgotten the house of pain?

Sayer of the Law: You! You made us in the house of pain! You made us… things! Not men! Not beasts! Part man… part beast! Things!

(Island of Lost Souls, 1932, after H. G. Wells)

Richard Nixon: “When the President does it, that means that it’s not illegal.”

Chris Wallace: “if the President, during war, decides to do something to protect the country, is it legal?”

Dick Cheney: “I think as a general proposition, I’d say yes.”

winter • September 22, 2013 4:26 AM

There seems a rule in the interpretation of laws that every word must have meaning. So a law that explicitely forbids to spy on people in the USA cannot be reinterpreted to allow spying on all people in the USA.

But laws can obviously be ignored.

Dirk Praet • September 22, 2013 5:47 PM

From a legal angle, one cannot but admire the beauty – or should we say insidiousness – of all the legal high tech that has been put in place to install a secret surveillance state while at the same time upholding the facade of a free and open society in the spirit of the Constitution as intended by the Founding Fathers.

David • September 22, 2013 8:45 PM

@Stanislav Datskovskiy

Any notion the NSA is sovereign must be rejected strongly – with guns, if it comes to that. In the US, the law is king.

Sean • September 22, 2013 10:05 PM

Freedom in the US has been a grand experiment. Probably time to admit that for the most part, it’s over. Let apathy ring forth, nobody really cares enough to take it back.

Prinz Wilhelm Gotha-Saxe-Coberg • September 22, 2013 10:34 PM

Oh, say can you see by the dawn’s early light
What so proudly we hailed at the twilight’s last gleaming?
Whose broad stripes and bright stars thru the perilous fight,
O’er the ramparts we watched were so gallantly streaming?
And the rocket’s red glare, the bombs bursting in air,
Gave proof through the night that our flag was still there.
Oh, say does that star-spangled banner yet wave
O’er the land of the coward and the home of the slave?

On the shore, dimly seen through the mists of the deep,
Where the foe’s haughty host in dread silence reposes,
What is that which the breeze, o’er the towering steep,
As it fitfully blows, half conceals, half discloses?
Now it catches the gleam of the morning’s first beam,
In full glory reflected now shines in the stream:
‘Tis the star-spangled banner! Oh long may it wave
O’er the land of the coward and the home of the slave!

And where is that band who so vauntingly swore
That the havoc of war and the battle’s confusion,
A home and a country should leave us no more!
Their blood has washed out their foul footsteps’ pollution.
No refuge could save the hireling and slave
From the terror of flight, or the gloom of the grave:
And the star-spangled banner in triumph doth wave
O’er the land of the coward and the home of the slave!

Oh! thus be it ever, when slave traders shall stand
Between their loved home and the war’s desolation!
Blest with victory and war, may the heav’n damned land
Praise the Power that hath made and preserved us a nation.
Then conquer we must, when our cause it is just,
And this be our motto: “In God is our trust.”
And the star-spangled banner in triumph shall wave
O’er the land of the coward and the home of the slave!

Some much needed Global War of Terror-inspired revisions. Don’t Panic! Your Plastic Pal Who’s Fun to be With! Mostly Harmless! Share and Enjoy!

FP • September 23, 2013 7:16 AM

It’s a bit limited to only look at the published statutes. I’m certain that there are plenty of secret executive orders and other papers that authorize the NSA and other agencies to do much more than just the Patriot Act.

Stanislav Datskovskiy • September 23, 2013 10:04 AM

David: the sovereign is the fellow with the modern army at his command. More or less by definition.

Skeptical • September 23, 2013 2:02 PM

Walsh conveniently leaves out this requirement:

(i) Destruction of unintentionally acquired information
In circumstances involving the unintentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States, such contents shall be destroyed upon recognition, unless the Attorney General determines that the contents indicate a threat of death or serious bodily harm to any person.

In other words, all the communications between Occupy protesters within the US would be destroyed unless they indicated a threat of death or seriously bodily harm.

That requirement wrecks Walsh’s hypothetical, never mind the dubious prospects of a federal judge approving the request he describes in the first place.

LinkTheValiant • September 24, 2013 8:50 AM

@Skeptical: The cynic in me says that that’s trivial to circumvent: Just have the NSA director threaten the agent with death unless the acquired information is stored!

David • September 25, 2013 12:11 PM

@Stanislav:

Bullshit. That “modern military force”, while disciplined, is not a featureless automaton. Our notions of what is and is not appropriate may change just who has it at their disposal, and to that end the notion of law as sovereign (and as a check on power) must not be eroded.

Schneier on Security

Legally Justifying NSA Surveillance of Americans

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