Once-Secret FISA Court Opinion Reveals Unlawful Spying

, The National Law Journal

   |5 Comments

An 85-page once-secret court ruling released publicly Wednesday revealed that intelligence authorities unlawfully collected the e-mail communication of tens of thousands of Americans over several years, violating constitutionally protected privacy interests.

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What's being said

  • SFreptile

    The big question, is whether a licensed attorney can ethically communicate confidential information with his or her client by email?

  • ljyoung

    JCarls makes several worthy points. If NSA would preemptively inform at the least Congress, of what they are doing = spying on the bad guys (please no rants on what is good vs bad) and what is happening because of the limitations of the collection and data mining algorithms = inadvertant acquisition of good guy internet content, then much less could or would be made of such happenings. This presumes that the NSA is being truthful about the deficiencies of their computer code.

  • not available

    Since wrongful collection of data is criminal misconduct, I assume that there will be a (secret) criminal prosecution followed by incarceration in a (secret) prison facility for a very long (secret) amount of time.

  • JCarls

    The headline to this article is wholly misleading. I want our intelligence operations to be monitored by all three branches of government and believe that we should never become lazy about the possibilities of abuse. However, time and time again the media has used the words "surveillance" and "spying" to describe passive collection of data that will not be used or accessed except for the portion that is actually covered by an investigation. This is laziness in the service of internet hits, not resolving this issue.

    What this article actually tells us is that the NSA itself "amid ongoing self-review in concert with other agencies" realized that their collection method was not being limited to collecting only the foreign communications in the stream (we can assume in part because of the data limitations of Internet communications protocols). It does not say that the actual data of U.S. citizens was used in any investigation. This crucial difference is being glossed over by a lot of the reporting and does not justify the label "illegal spying" with all the implications that this phrase brings. One can easily understand why the NSA, faced with the technical challenges of ferreting out information from metadata representing a dataset of breathtaking and ever-increasing size, might be reticent about admitting that making any use of it at all requires some fuzziness at the edges of the data being collected. It is important to note that data inadvertently collected "illegally" in the course of a legal investigation still cannot be used in a court to justify an unrelated investigation, so the NSA (and any other law agency) has an incentive to make its data stream collection as accurate as possible within technical limitations. Or not collect it at all, which seems to me to be a pointless and impractical argument to make.

    The conversation that these revelations have started (or to be accurate, have simply made more public) is healthy. We need to figure out how to do intelligence gathering in the context of both a right to privacy and a world full of throwaway cell phones and email addresses. But that conversation needs to happen without people calling passive data gathering "spying." When the police had a huge database of where you lived and what your phone number was, it wasn't called spying, it was called the phone book.

  • Stevelaudig

    "The court is troubled that the government's revelation" Wow, troubled, I'm impressed. I agree that our courts are troubled. but not troubled enough to do anything. All the rule of law types from the US that go out to world should go back home and get their own house in order.

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