Supreme Court Justice Antonin Scalia said Wednesday that the courts ultimately will have to determine the legality of surveillance programs by the National Security Agency.
And he’s not sure that’s a good thing in an era of complex security threats against the United States.
Scalia told the Northern Virginia Technology Council that questions about how much information the NSA can collect about Americans’ telephone calls and under what circumstances the agency can monitor conversations are best answered by the elected branches of government.
But he said that the Supreme Court took that power for itself in 1960s-era expansions of privacy rights, including prohibitions on wiretapping without a judge’s approval.
“The consequence of that is that whether the NSA can do the stuff it’s been doing … which used to be a question for the people … will now be resolved by the branch of government that knows the least about the issues in question, the branch that knows the least about the extent of the threat against which the wiretapping is directed,” he said.
The Obama administration has given up more of its surveillance secrets, acknowledging that it was ordered to stop scooping up thousands of Internet communications from Americans with no connection to terrorism — a practice it says was an unintended consequence when it gathered bundles of Internet traffic connected to terror suspects.
One of the documents that intelligence officials released Wednesday came because a court ordered the National Security Agency to do so. But it’s also part of the administration’s response to the leaks by analyst-turned-fugitive Edward Snowden, who revealed that the NSA’s spying programs went further and gathered millions more U.S. communications than most Americans realized.
The story in the Washington Post takes the typical cover-for-the-liberal-administration tack, but buried deep on page three is this jewel:
Under court order, the NSA resolved the problem by creating new ways to detect when emails by people within the U.S. were being intercepted and separated those batches of communications. It also developed new ways to limit how that data could be accessed or used. The agency also agreed to only keep these bundled communications for possible later analysis for a two-year period, instead of the usual five-year retention period.
That means the U.S. material is still gathered and kept, but is treated with stricter protocols.
The agency also, under court order, destroyed all the bundled data gathered between 2008, when the FISA court first authorized the collection under Section 702 of the Patriot Act, and 2011, when the new procedures were put in place.
The court signed off on the new procedures.
So yes. The NSA is STILL collecting our data.
The VA Pilot has an article about the privacy breaches in the NSA’s PRSIM program:
The National Security Agency has broken privacy rules or overstepped its legal authority thousands of times each year since Congress granted the agency broad new powers in 2008, according to an internal audit and other top-secret documents.
Most of the infractions involve unauthorized surveillance of Americans or foreign intelligence targets in the United States, both of which are restricted by law and executive order. They range from significant violations of law to typographical errors that resulted in unintended interception of U.S. e-mails and telephone calls.
But buried further in the article is this kicker:
There is no reliable way to calculate from the number of recorded compliance issues how many Americans have had their communications improperly collected, stored or distributed by the NSA.
Just a reminder, the 4th Amendment says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Read the whole article. If this doesn’t get you fired up, I don’t know what will.