Jonathan Mayer reflects on court case ruling NSA program illegal

"In an interview with The Daily, Jonathan Mayer J.D. ’13, a Cybersecurity Fellow at Stanford’s Center for International Security and Cooperation (CISAC) and lecturer at the Law School, talked about the impacts of the two NSA surveillance programs on the general public.

The Stanford Daily (TSD): From a legal perspective, what does the Second Circuit’s decision mean?

Mayer: There are, broadly speaking, two kinds of arguments about the legality of the particular surveillance program. The first argument is it’s unconstitutional. Usually the constitutional rights advocates refers to the Fourth Amendment protection against unreasonable searches and seizures. Another way of questioning the legality of a surveillance program is saying, “Hey, Congress didn’t say you could do that.” So, setting aside the constitutional issues, Congress just didn’t give the executive the power to conduct that surveillance program. That’s the specific challenge that came up in Second Circuit’s decision. The Court invalidated the NSA’s program on statutory grounds, but didn’t address whether the program is constitutional.

So what prevents the NSA from pointing to another statute, getting another statute, or doing this with something other than phones? The reason why I think the statutory analysis is such a big deal is that surveillance statutes, for the most part, share a lot of language. The law is frustratingly tangled, but there are some points of clarity. One of the points of clarity is this language about relevance. Over and over again in surveillance laws there has to be relevance in an investigation. By holding that relevance doesn’t support a bulk program of this sort, the Second Circuit hasn’t just narrowly ruled on this particular statute or telephones because that same statute applies to all the technologies and that relevance language shows up in all sorts of other statutes.

Let me give you a very concrete example. Until 2013, the Drug Enforcement Administration operated its own bulk telephone metadata surveillance program, and it did that under a different statute, but if that surveillance program were ongoing today, I think the Second Circuit’s reasoning would unambiguously have invalidated that program too."

Read the full interview at The Stanford Daily