U.S. Surveillance Programs: Is Spying on American Citizens Legal and Constitutional?

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Is the NSA surveillance program legal and Constitutional? Image by EFF designer Hugh D’Andrade

Obama’s Proposed Changes to the NSA

When the government needs a warrant to examine certain data, they make an application to the Foreign Intelligence Surveillance Court (FISC). Only one party appears before this secret court—the government.

A major change the president proposed is to have another party appear before the court; someone who would appear in order to protect the privacy of ordinary citizens not suspected of any wrongdoing.

Other changes Obama promised were greater accountability, and changes to the Patriot Act. He did not elaborate with the nature and scope of these changes, and it is far from clear that appointing someone to safeguard privacy will end the collection of massive data on ordinary citizens.

Section 215 of the Patriot Act

Section 215 of the Patriot Act allows the FBI to apply for an order requiring persons and entities to turn “tangible things” over to them. These tangible items include documents, papers, books and records.

What sets this section apart from laws regarding warrants to seize items is that the FBI need not show probable cause a crime has been committed. All the agency need do is say the things they seek are necessary for an investigation “to protect against international terrorism or clandestine intelligence activities.”

  • The FBI must also assure the court that the investigation is not for the purpose of limiting citizens’ rights under the First Amendment.
  • Only the FBI director and enumerated high officials are entitled to make an application.

A criticism of section 215 is that the “tangible things” the FBI obtains includes metadata; that is every telephone call Americans make. Allowing the FBI access to such metadata leads to some of the problems mentioned above.

Rep. James Sensenbrenner Jr. (R-Wis.), one of the people who helped draft section 215, said the purpose of the section was to help the FBI investigate certain suspects or targets. There was never any intent to provide all telephone calls made in the United States to the government whose position is that this information is merely incidental to what needs to be collected to protect the country.

NSA Spying on U.S. Citizens: Are These Programs Legal?

The NSA spying programs are legal in the sense they have all been sanctioned by Congress and many members, on both sides of the aisle, are in favor of the status quo. According to Sen. Diane Feinstein (D-CA), members of the judiciary and intelligence committees in both the House and Senate have been briefed on these programs and have no problem with them. Therefore they are legal.

But critics, such as the ACLU, argue these programs violate the Fourth Amendment and are therefore unconstitutional. The fourth amendment protects citizens against unreasonable search and seizure and also states, contrary to section 215 of the Patriot Act, that warrants cannot be issued unless probable cause is shown.

Foreign Intelligence Surveillance Court: Protecting Citizens From Government Intrusion?

The purpose of the Foreign Intelligence Surveillance Court is to protect the rights of citizens against government intrusion but since the secret court has already sanctioned the collection of metadata, it is difficult to see how ordinary law-abiding Americans are being protected.

Authorization by a secret court to obtain this data and the government’s assurances they will not use the information they gather for improper purposes, is not sufficient at a time when there is little trust in the government – and at a time when the IRS is accused of targeting groups they don’t like.

It is debatable whether any program modifications contemplated by the president will allay the fears of the American public that their privacy is being compromised.

Resources:

Pro Publica. FAQ: What You Need to Know About the NSA Surveillance Program. (2013). Accessed August 14, 2013.

ABC News. Obama Touts NSA Reforms: ‘America Is Not Interested in Spying on Ordinary People.’ (2013). Accessed August 14, 2013.

Washington Post. NSA surveillance may be legal—but it’s unconstitutional. (2013). Accessed August 14, 2013.

ACLU. Reform of the Patriot Act; Section 215. (2013). Accessed August 14, 2013.

American Bar Association. Patriot Debates. (2013). Accessed August 14, 2013.

Wall Street Journal. The NSA’s Surveillance is Unconstitutional. (2013). Accessed August 14, 2013.

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