The New York Times has reported that the National Security Agency (NSA) is combing through vast amounts of Americans’ email and text communications into and out of the country. This latest revelation—part of the continuing fallout from the disclosures of government documents by former NSA contractor Edward J. Snowden—underscores the frayed fabric of the Constitution’s Fourth Amendment and the threat to the values it protects.
We already knew that the government was sweeping up international communications of American citizens under the FISA Amendments Act of 2008 (FAA). While the FAA authorizes the government to target foreigners abroad, it also permits the government to collect Americans’ communications with those foreign targets, as well as to retain and disseminate that information to other government agencies and foreign governments.
The Times story, however, makes clear that the NSA is also acquiring—without a warrant—the communications of any foreigner “about the target,” once a target has been identified, thus sweeping in an even wider range of communications by U.S. citizens than previously believed.
The Fourth Amendment provides a bulwark against this type of dragnet surveillance. Before searching Americans’ private communications, the Fourth Amendment requires that the government demonstrate probable cause or individualized suspicion.
The Fourth Amendment also interposes an independent judiciary between the government and its citizenry—requiring that the government obtain a warrant by making this individualized showing before a federal judge. Review by a neutral and independent decisionmaker is crucial to the Madisonian system of checks and balances, designed to prevent government overreaching and safeguard individual freedoms.
The NSA surveillance programs undermine these protections, threatening to render them a dead letter for all “foreign intelligence information”—a category broadly defined to include information not only about terrorism, but also about intelligence activities, national defense, and even the “foreign affairs” of the United States.
Further, given the lax standards the NSA uses to determine whether prospective surveillance targets are foreigners abroad, errors are inevitable. This means that the NSA is likely collecting the content of purely domestic communications as well.
In 1978, Congress established a special court—known as the Foreign Intelligence Surveillance Court (FISC)—to review requests for national security surveillance. But, at best, the FISC is merely providing review of the overall surveillance programs conducted under the FAA, and not individual requests for information.
Moreover, no FISC ruling explaining its legal analysis of the FAA or “about the target” searches of Americans’ cross-border communications has been disclosed to the public. The secrecy that shrouds the FISC’s decisions heightens the risk to the Fourth Amendment, as even the reasoning used to justify massive government surveillance remains secret.
The impact of NSA surveillance is deep and far-reaching. Vacuuming up Americans’ communications undermines basic principles of privacy. It also chills the communications and discourse essential to a democratic society and fundamentally alters the citizenry’s relation with its government.
The NSA’s widespread, suspicionless surveillance of Americans’ private communications will not only impact the work of journalists, lawyers, and others who frequently communicate with people abroad. It will also affect the conduct of ordinary citizens, now fearful of visiting a controversial website or discussing a particular topic via email.
Over time, the vibrant exchange of ideas essential to democracy will diminish and trust in the government will erode. At the same time, the government will be emboldened to justify further incursions on individual liberty in name of protecting the United States from terrorism or other threats.
Fortunately, the disclosures have begun to trigger a backlash. Last month, the House of Representatives narrowly rejected an amendment by Justin Amash (R-Mich) intended to shut down the NSA’s bulk collection of telephone metadata (information about whom people are calling but not the content of the calls).
The closeness of the vote—much narrower than the House vote two years ago to reauthorize the Patriot Act provision used for phone metadata collection—suggests growing public concern over the scope of government surveillance. While it would be naïve to expect a sharp shift in direction given the government’s view of the necessity of its surveillance operations in preventing future terrorist attacks, the vote suggests the possibility for a much-needed recalibration of the balance between liberty and security.
Jonathan Hafetz is Associate Professor of Law at Seton Hall Law School
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