by I Spy: The Problems with NSA Overreach
Tyler Anderson[*]
Over the past several months, Congress has generated considerable outrage regarding the NSA’s collection of data from foreign officials.[2] Some of this criticism is surely deserved; for example, we recently learned that the NSA spied on Ban Ki-moon’s talking points before Ban’s meeting with President Obama to discuss, among other things, global climate change[3]—Moon is not the sort of existential threat toward which the NSA should be dedicating its resources.
Nevertheless, the outrage generated by international spying domestically—and particularly by Congress—largely misses the problems generated by NSA surveillance that is both secret and expansive. Here, the history of intelligence surveillance reform is instructive. The original Foreign Intelligence Surveillance Act and the Foreign Intelligence Surveillance Act Amendments Act (FAA) strongly distinguished between surveillance conducted on foreigners compared to surveillance conducted on Americans.[4] While some of this tailoring is due to Constitutional (primarily 4th Amendment) constraints, it is important to remember that Congress put the policy of limiting surveillance overreach into play as a direct response to the unauthorized wiretapping of non-violent civic activists and other egregious behavior by the intelligence community against American citizens.[5]
In an overly punitive criminal justice system where the typical American commits up to three felonies a day,[6] information gathered by an NSA that can always make credible arguments that its power must be expanded to prevent the next terrorist attack,[7] gives the United States government enormous power that could be leveraged against every American. This is a problem that Angela Merkel and Dilma Rousseff don’t have to worry about.
(I say this while acknowledging that there are many measures the United States government can bring to bear against non-U.S. citizens that can make life very unpleasant for them. Hat tip, Ted Weisman.)
[*] J.D. Candidate, Harvard Law School, 2014.
[2] See Jack Goldsmith, Skepticism about Supposed White House and Intelligence Committee Ignorance About NSA Collection Against Allied Leaders, Lawfare (Oct. 29, 2013, 12:01 PM), https://www.lawfareblog.com/skepticism-about-supposed-white-house-and-intelligence-committee-ignorance-about-nsa-collection [https://perma.cc/TW28-QBBV].
[3] Scott Shane, No Morsel Too Miniscule for All-Consuming N.S.A., N.Y. Times (Nov. 2, 2013), https://www.nytimes.com/2013/11/03/world/no-morsel-too-minuscule-for-all-consuming-nsa.html [https://perma.cc/7D3Y-TFCK].
[4] See generally Tyler C. Anderson, Toward Institutional Reform of Intelligence Surveillance: A Proposal to Amend the Foreign Intelligence Surveillance Act, 8(2) Harv. L. & Pol’y Rev. 413 (2014).
[5] See id.; see also Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, United States Senate (“Church Committee”), Report No. 94-755 (1976), available at https://www.intelligence.senate.gov/resources/intelligence-related-commissions [https://perma.cc/9YW2-FC8Y].
[6] See generally Harvey A. Silverglate, Three Felonies a Day: How the Feds Target the Innocent (2011).
[7] See Yochai Benkler, How the NSA and FBI foil weak oversight, The Guardian (Oct. 16, 2013), https://www.theguardian.com/commentisfree/2013/oct/16/nsa-fbi-endrun-weak-oversight [https://perma.cc/56Y9-8ZPV].