The Scandal Is Congress, Not the NSA
A highly classified court order, leaked to the British paper The Guardian and published on Wednesday, details a practice civil libertarians have long feared: indiscriminate surveillance of U.S. citizens. While on its surface, this order — which authorized the secretive National Security Agency to collect data on phone calls placed by Verizon customers for a period of three months — seems blatantly illegal, the reality is that Congress has been enabling and legalizing such surveillance for years.
The NSA was collecting so-called metadata: information about call duration, location, and numbers, but not the identities of the callers or the content of their conversations. It was not wiretapping or eavesdropping as they’re traditionally known. This type of data is most useful for pattern analysis, which might be clarified to focus on an individual or a group of individuals, but to collect the content of their conversations the NSA would need another warrant.
The last time the NSA came under fire for its surveillance of Americans was in 2005, when the New York Times broke the story that the NSA had been collecting data on American citizens without a court order. Though Bush administration officials insist the collection was instrumental in breaking up terrorist plots, it also marked a new expansion of NSA authority – directly listening to American citizens.
Many viewed the NSA eavesdropping, enabled without much protest by US telecom companies, to be patently illegal. In order to protect telecoms from legal reprisals by angry customers, Congress passed, in 2008 amendments to the Foreign Intelligence Surveillance Act, a retroactive legal immunity protecting them from lawsuit.
Those changes to FISA had a rippling effect on the government’s ability to collect information on citizens. The NSA spied on Americans without even seeking a warrant, but instead of punishing them or the companies who assisted them, Congress instead gave them the go-ahead. In other words, they set a new norm that made it okay for an intelligence agency to seek data about Americans.