NSA Surveillance Program Still Unconstitutional Despite Proposed Changes

JURIST Guest Columnist Samar Warsi, a legal fellow at the Institute for Social Policy and Understanding, says that, even after implementing the changes proposed by President Barack Obama, the NSA's surveillance program is still constitutionally problematic...

Freedom is the great deity of the west, the goddess central to American identity; the idea being that individuals have autonomy—good or bad, wise or foolish, controversial or conventional—to live their lives with minimal government interference.

Post-9/11, that narrative has devolved into something less than ideal: the government can encroach on your civil liberties as long as they can provide a scintilla of justification that it might somehow be linked to a national security threat.

In a press conference this past week, President Barack Obama announced changes that would be made to the National Security Agency (NSA) surveillance program. The proposed changes, although a step in the right direction, fail to bring the program into constitutionally permissible limits.

1. Mass Data Collection is Constitutionally Impermissible

One proposed change is that NSA analysts will need permission from the Foreign Intelligence Secret Court (FISA) when querying a database.

Obama stated that in order to curb the risk of NSA agents arbitrarily collecting information, analysts will now have to get permission from the secret court to query the database. This way, NSA agents will have the information "when [they] need" but will no longer be able to hold massive amounts of information.

In the 1970s, President Richard Nixon's warrantless wiretapping shocked the nation. The administration tried to sweep its actions under the guise of "national security" claiming the illegal acts were for the nation's greater good. At the very core of the outrage in response to the scandal was the notion that warrantless surveillance was unconstitutional. Both Congress and the US Supreme Court "insisted that the law had to govern all intelligence and counterintelligence gathering by the government, even when it was undertaken to protect against terrorism."

Even when balancing security and liberty, the Constitution does not simply allow unfettered access to the lives of the American people. The Fourth Amendment safeguards the "right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures" by the government. Obama's proposed reform does not change the fact that warrantless and often baseless surveillance will persist; the government will still access, keep and search metadata until it decides what to do with the information.

2. Nothing in the proposed changes eliminates bulk surveillance

Another proposed change would limit the NSA's ability to use the "three hops" to a "two hop" approach when querying a database. A three-hop query means the NSA can examine numbers that are within three degrees of separation from the original number. For example, if the NSA examines data of a suspected criminal, they can also examine data from anyone the suspected criminal communicated with, and anyone those people communicated with.

While the two-hop approach naturally limits the NSA's reach as compared to the three-hop method, it still does not address the problem of bulk surveillance. Simply violating an individual's privacy rights less does not make it constitutionally permissible.

3. FISA is potentially powerless to remedy NSA wrongdoing

While in theory, it seems beneficial to have the court act as an impartial third party—in reality, there is no way to know if the court's existence is even effective. In fact, there is evidence to the contrary. The Washington Post previously reported that an independent audit of the NSA found that the agency broke privacy rules thousands of times a year, including orders by FISA.

The Director of National Intelligence, however, casually dismissed these instances of illegality as "compliance problems." To ensure that the NSA will not continue to have "compliance problems," there needs to be a completely new approach when it comes to NSA oversight. To simply give the relatively powerless court more responsibility serves no legitimate purpose—it is simply a farce to subordinate public concern.

The way to reconcile the freedom we so deeply value with the need to be proactive about our national security is to create and abide by narrowly tailored policies that prevent the unjustifiable stockpiling of information. There must be a conscientious effort to move in the direction written policies and clear methods of accountability to ensure that productive changes will be implemented to the NSA's operating procedures.

Samar Warsi is a legal fellow at the Institute for Social Policy and Understanding. She holds a B.A. in Political Science from McMaster University and graduated with a J.D. from the Oklahoma City University School of Law. She is admitted to practice in the state bar of Texas.

Suggested citation: Samar Warsi, NSA Surveillance Program Still Unconstitutional Despite Proposed Changes, JURIST - Hotline, Jan. 21, 2014, http://jurist.org/hotline/2014/01/samar-warsi-NSA-intelligence.php.


This article was prepared for publication by Stephen Krug, a senior editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

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