NSA Surveillance Programs: Illegal and Unconstitutional

In the midst of an international manhunt for former NSA analyst Edward Snowden — and the public debate on branding him as a hero or traitor — many Americans have forgotten the root of the real problem: the legal validity of these surveillance programs. 

Some believe in the notion the ordinary, law-abiding citizen has nothing to worry about, since the government would never target them (despite the fact that Snowden revealed that these programs have done exactly that — collected mass metadata from typical, run-of-the-mill citizens).

Others in favor of the surveillance, including President Obama and U.S Senators Diane Feinstein (D-CA) and Saxby Chambliss (R-GA), have said the NSA’s programs are perfectly legal and a small sacrifice of privacy for protection.  These views, however, are flawed on both legal and constitutional grounds.

The state has justified its phone metadata collection under Section 215 of the PATRIOT Act which states:

[The F.B.I] may make an application for an order requiring the production of any tangible things [(e.g., books, papers, documents)] for an investigation to protect against international terrorism…provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment…

And in fact, collecting mass records of phone call information without establishing a relevant connection between the targeted individual to a specific ongoing investigation clearly goes against that provision.

With that in mind, the NSA’s mass electronic surveillance program — PRISM — follow suit.  The NSA argues for PRISM’s legitimacy with Section 1881a of the FISA Amendment Acts of 2008 that allowed the Attorney General and NSA Director to target persons “reasonably believed to be located outside the United States to acquire foreign intelligence information.” These laws do not give authorization to target any person located in the US nor any US citizen residing abroad. PRISM is designed to produce only 51% confidence in a target’s “ foreignness” before collecting data, meaning the other 49% of data collected (at least) could be illegally targeting American residents or citizens.

President Obama says he aims to uphold the Constitution and protect the people’s right to privacy, but his administration’s actions have not reflected those words.  More than anything, the NSA’s mass surveillance programs are a direct violation of the Fourth Amendment, which protects citizens from unreasonable searches and seizures without a warrant and probable cause.

The details have made it clear that the government have been invading the privacy of countless Americans over the past decade. However, there are conscientious voices in government dissenting against these programs, including U.S Senator Rand Paul (R-KY) and even one of the PATRIOT Act’s original architects, U.S Representative Jim Sensenbrenner(R-WI).  

Together, Americans — young, old, conservative, moderate, liberal — can reach out, speak up, and hold the ones responsible liable for their crimes.