This morning, the NY Times posted my op-ed, co-authored with CIS affiliate scholar Chris Sprigman, arguing that the two federal statutes the Obama Administration has pointed to as authorizing NSA mass surveillance of our phone calls, emails, chats, social networking, etc. -- the FISA Amendments Act and the Patriot Act -- don't actually authorize the NSA's conduct. Which, in our view, makes the NSA mass surveillance programs criminal. We're not happy to report that. But those are our conclusions.
Chris and I wrote this because the people arguing against legality of the NSA programs were going directly to the 4th Amendment, which a lot of people understand and love. But there is this other thing called the U.S. Code: it governs most of what we do (for good or ill). Reading statutes especially FISA is not pleasant, but someone had to do it. I am hoping that an op-ed in the Times making clear that even the Obama Admin. is breaking the law will not only cause some people to wonder whether mass surveillance is a good idea, but will also illustrate how incredibly important this public conversation Edward Snowden sparked about government surveillance is.
This afternoon, we have a follow-up piece re: NSA mass surveillance, this time in The Atlantic. This morning's NY Times op-ed argued that the NSA's warrantless electronic spying programs are illegal. The Atlantic piece identifies one reason why they are also bad policy. Countries that want to protect their citizens from unfettered spying will start demanding local data storage, rather than allowing it to flow through the U.S-based facilities of American Internet giants like Google, Facebook, Twitter, and the like. That's bad for the American economy. And also bad for U.S. interests around the world, because an Internet that stores a lot of data in the U.S. is a freer, more open place (thank you, First Amendment!) than a world with separate Internets for China, Russia, Iran and the like. Once again, the privacy security blather is a canard.