Thursday, January 22, 2009

NSA Wiretapping

On Countdown last night, a former NSA analyst revealed that the NSA's wiretapping program was much broader and vaster than previously suspected. It included collecting and monitoring, according to this source, the metadata from all electronic communications in the US, whether it had a foreign component or not, as well as monitoring the communications of some organizations, such as news outlets, on a 24-7-365 basis.

Unfortunately, from what I have learned from reading about cases over at Volokh, the case law regarding whether the collection of metadata constitutes a "search" for 4th Amendment purposes is unsettled. So, if the analyst's accusations are true, then the Bush regime was certainly lying about the scope of the NSA wiretapping and about it use in cases of purely domestic communications. It is not clear to me, from what I understand of the case law, however, whether collecting metadata like this without a warrant would be considered an illegal search or not. If the NSA has been (and is) doing this, then they are clearly using the shortfalls in the law's ability to keep up with technology and skirting on the edge of legality. And, in the end, the courts may end up deciding that searching metadata is illegal, and then the NSA's actions would definitely be not only creepy and sinister but clearly against the law and Constitution.

On the 24-7-365 wiretapping of certain organizations and groups, apparently, according to this source, the NSA had a novel excuse for why it was doing this: it had to tap these particular organizations 24-7 in order to be sure they weren't accidentally tapping them when they didn't want to. That's right: the claim is that they only monitored these sources 24-7 in order to be sure they knew what communications were from them so they could avoid intercepting their communications when they didn't mean to. They aren't reading your mail... they're just opening all of it to make sure they don't accidentally read it...

We'll see what comes of this. Right now, of course, all we have is one uncorroborated source for the story, and claims that, at least in part, may not actually rise to illegality, though they should. But the idea that the NSA is even gathering the metadata on literally every single e-mail, fax, phone call, and internet search done by every American is creepy enough on its own.

I hope this isn't true. And if it is, I hope it is stopped and someone gets punished. We'll see.


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