As you know, unless you’re living under a rock, Edward Snowden is a former National Security Agency contractor who released records relating to the NSA’s PRISM project. Although PRISM’s scope remains obscure, it appears that the NSA has been mining all sorts of data from big tech and communications companies. That data surely includes so-called ‘metadata,’ which is information about phone calls and e-mail messages, such as the sender and recipient.
Response to Mr. Snowden’s revelations has been mixed; the data sought is not terribly private or secret, and more government surveillance is accepted since 9/11.
The PRISM data may also include some other information, such as the content of e-mails. Whether the NSA can, or does, listen in on phone calls or read messages remains unclear. There is a specialty court, FISA court (named for the federal law that created it), that approves NSA requests to gather data, but proceedings in that court remains secret.
Whether the surveillance is acceptable or not, the secrecy regarding its scope is appalling. Because the NSA is so secretive about what it does, there’s no opportunity for any public discussion about what it may do.
The right to privacy is protected by the Fourth Amendment, which protects against “unreasonable searches and seizures” of “persons, houses, papers, and effects.” The US Supreme Court has held that the Fourth Amendment protects privacy even in telephone conversations and other things that didn’t exist when the Bill of Rights was adopted, based on whether you have a “reasonable expectation of privacy.” There is a tremendous body of law about whether the police (or NSA) can look in your car, your pockets, or your house, or whether doing so would violate your right to privacy protected by the Fourth Amendment. And that law is enforced mostly through motions to suppress in criminal prosecutions – if the police look through your pockets without a legal basis to do so, the evidence they find can’t be used against you.
Suppression isn’t a perfect mechanism by any means, but no better one is obvious. I doubt that the police hierarchy would ever do much to punish police who engage in flagrantly illegal searches, nor that juries would award real money in damages to illegally-searched people who brought suit against the police. Suppression is important, not to protect the criminals, but to protect the noncriminals who would otherwise be subject to illegal searches by the police.
In the case of the NSA’s data mining, no one knows who is being searched or what the NSA does with what it finds. That means that the primary mechanism to enforce invasions of our privacy is gone. If the police identify a possible criminal with an illegal search, and then find independent evidence of the crime, then the suspect won’t know of the illegal search or have any way to seek suppression. The NSA is left with no reason to honor the limitations imposed by the Fourth Amendment. They might honor it anyway, of course, but I can’t say I trust them that far.
That brings us back to Mr. Snowden. He decided unilaterally to make public details about the PRISM program. NSA had decided to keep it secret, although NSA didn’t act unilaterally; Congress was at least generally informed. No doubt Mr. Snowden’s actions were illegal, but I cannot find it in myself to blame him. He did not reveal anything that should not already have been public; he did not name names, he identified a legal program used to obtain data, and he told us about the sources of the data and the data itself. I suppose that knowing that the data exists and is being mined, will encourage a few unusually dull terrorists or criminals to change their tactics to evade detection. But surely the possibility of such surveillance was already known, and so the damage done to the NSA’s mission is minimal. The real damage to the NSA will be, I hope, that they will have to start obeying the limitations of the Fourth Amendment, but that may be too much to hope for.
