Not Just Illegal, Criminal

Back in August, I wrote a post about Jennifer Granick's outstanding article, My Dinner With NSA Director Keith Alexander, that appeared in Forbes. Now Granick is back with another great article that discusses the recent Privacy and Civil Liberties Oversight Board report on the NSA's widespread surveillance. That report, as you've probably heard, concluded that the mass accumulation of telephone metadata was illegal.

Granick makes two excellent points. First, there is no need to make esoteric Fourth Amendment arguments. The surveillance is illegal on its face because, despite what the government keeps saying, it is not authorized by any statute and is, in fact specifically prohibited without such authorization. Once you hear that argument made, it's perfectly obvious but I've never before heard anyone make it.

That insight surely hasn't escaped those judges ruling in the government's favor. That can only be described as an intentional ignoring of the law in the service of what they must think of as a greater good. The thing is, in the American democracy there aren't many greater goods than the rule of law and equal justice.

When you read Granick's article there won't be any doubt in your mind that the NSA's actions are illegal. Her second point, though, is the explosive one. If the phone companies are collecting and turning over to the NSA any information that they wouldn't collect for their normal billing and if they weren't provided a warrant showing the data is relevant to an investigation (which of course they haven't been) then that action is criminal.

It's too much to hope that anyone is going to go to jail for this behavior—look at James Clapper, after all—but it would be nice if those responsible felt there was more at sake than just a wrist slap from the courts telling them not to do it anymore. Perhaps if their own freedoms were at stake, they'd be a little more considerate of ours.

At any rate, if, like me, you're concerned about what the NSA is doing you really must read Granick's article. As I wrote before, she's one of the few mainstream journalists who appears to understand the issues.

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