We Are To Blame

The latest NSA eavesdropping debate should be about us

The details are harrowing: The NSA is collecting vast tranches of information about your calls and conversations. A secret court, ruling behind closed doors, gave them permission. Is the government overstepping its bounds?

That isn’t an easy question to answer. The National Security Agency ordered Verizon Business Services to hand over daily “metadata,” or data about data. They are collecting information about all phone calls happening over Verizon’s network: telephone numbers, location data, call length. They did not record the names of whom spoke on, or the content of their calls.

In a normative sense, such an unusually broad act of surveillance is beyond the pale — or at least, probably should be. The reality, though, is that what the NSA did is perfectly legal. Moreover, Congress even went out of its way to keep the legal justification for it a secret.

The problem isn’t that the NSA is obeying the law: the law itself is the problem. And no matter the public outcry now, we not only supported that law when it was being created, we probably won’t change anything now that its most extreme practices are being exposed.

Congress Created Broad Surveillance Powers

In the frenzied aftermath of 9/11, Congress passed an expansive piece of legislation called the USA PATRIOT Act. A key provision of this act allowed intelligence agencies to begin collecting information on U.S. citizens — a procedure banned since the 1975 Church Committee restricted it after outcry over the CIA’s spying on domestic political groups.

Though civil libertarians opposed the Patriot Act, it nevertheless passed with wide margins. But the Foreign Intelligence Surveillance Act still restricted the capacity of intelligence agencies to directly snoop on Americans, establishing the so-called FISA wall between the FBI and foreign-focused intelligence agencies. About a year after the Patriot Act passed, in 2002, the Department of Justice successfully won a court appeal removing that wall separating intelligence and law enforcement.

Congress soon took more action to give new authorities to the executive branch for counterterrorism missions. In 2004, Congress passed the Intelligence Reform and Terrorism Prevention Act, which modified material support laws restricting Americans’ interaction with designated Foreign Terrorist Organizations. The new law created additional surveillance and investigation authorities for monitoring U.S. citizens suspected of aiding terrorist groups abroad.

The next year, in 2005, the New York Times broke the NSA wiretapping story, where, without first seeking a warrant, the NSA had eavesdropped on phone calls involving U.S. citizens. In the outcry that followed, Congress granted the telecom companies retroactive legal immunity from prosecution in 2008, laying the groundwork for the NSA’s continued expansive eavesdropping and data collection.

Some senators have tried to raise the alarm about this dramatic expansion of surveillance authorities. In 2011, Senators Mark Udall (D-CO) and Ron Wyden (D-OR) tried to add an amendment to the reauthorization of the Patriot Act limiting how much the government could secretly surveil citizens. The Senate — Democrats and Republicans alike — voted to remove the amendment.

Then, in December 2012, Senator Jeff Merkley (D-OR) tried to add an amendment to that year’s defense bill prohibiting secret legal rulings in investigations against U.S. citizens. It, too, was voted down by both Democrats and Republicans.

Congress, it seems, not only likes secrecy, it goes out of its way to make sure the government operates in secret.

Mike Rogers, Chairman of the House Permanent Select Committee on Intelligence, told Politico that this surveillance program — which has gone on for years — thwarted a domestic terrorism plot. He did not give details.Dianne Feinstein, who chairs the Senate Select Committee on Intelligence, has defended the program as a long-running counterterrorism operation. It enjoys bipartisan support.

Legal Data Collection

What the NSA did was perfectly legal: created through and approved by all three branches of our government, with both parties supporting it under Presidents Bush and Obama. It is the direct consequence of over a decade of expanding surveillance powers.

The kind of data the NSA collected — the metadata of calls — could be used to personally identify some callers. But that’s also apparently not standard practice at the NSA, according to reporters who have investigated this.

This is not mass eavesdropping as we traditionally understand it. Rather, metadata is used to establish patterns of behavior — what normal calling activity looks like, so that abnormal activity can be isolated and investigated further. That means calling your mom to ask how she’s doing is one thing, while a rapid succession of calls from random numbers to a single source in a short period of time might invite scrutiny.

I will be shocked if any congressmen or senators are voted out of office for their involvement in the last decade of granting expansive surveillance authorities to the government. Despite never polling well, Americans have also never raised much of a fuss about surveillance of other groups.

Moreover, we willingly hand over our data to companies all the time. People for the most part are perfectly happy to let Google stripmine their private lives for neat services; letting the government sift that same data for intelligence about terrorist attacks is, judging by the outcry, beyond the pale.

There remain serious questions about whether this kind of investigation is in line with American values. As the scope of the government’s surveillance powers becomes plain, it’s certain to spark further debate. There is no question, however, about its legality — Congress made sure it is perfectly legal. As we continue to ask why the government has such expansive control of our communications, it is important we also demand answers from our elected representatives who granted it.