It took seven years to state the obvious, but at least it’s happened at last. The question now is what to do to prevent similar travesties in the future.
On Wednesday, per Politico, a federal appeals court finally announced its ruling on a case involving a distressing amount of surveillance — the wholesale spying on American citizens and foreign nationals in the U.S. — by the notorious National Security Agency (NSA). The scale of the operation was brought to light by the revelations of whistleblower and former NSA-contractor, Edward Snowden. This particular ruling, however, pertains to an incident from 2013 involving Somali nationals who were found to be fundraising for terror group Al-Shabaab, not for activities in the U.S., however, but in Africa.
According to the court, the NSA’s collection of Americans’ phone metadata was illegal, and likely a violation of the constitution. The incident involves four Somali immigrants — two of whom are presently serving time, and two of whom have been released after completing their sentences — accused of sending funds to Al-Shabaab in 2013. The case tracks years of NSA operations conducted neither with the explicit knowledge of U.S. citizens nor the required authorization of the courts.
The panel held that the government may have violated the Fourth Amendment when it collected the telephony metadata of millions of Americans, including at least one of the defendants, pursuant to the Foreign Intelligence Surveillance Act (FISA), but that suppression is not warranted on the facts of this case.
However, the court ruled that, even if the collection was unconstitutional, it didn’t necessarily render the ruling on the Somalis null or void.
Having carefully reviewed the classified FISA applications and all related classified information, the panel was convinced that under established Fourth Amendment standards, the metadata collection, even if unconstitutional, did not taint the evidence introduced by the government at trial.
The backstory — According to the judges, the defendants had the right to be notified of their personal information being recorded in foreign-intelligence related spying activity. The 59-page opinion confirms what millions had already worried about and criticized: the NSA appears to have carte blanche when it comes to its investigative powers, and it often erases the thin line between reasonable searches and transgressions against individual privacy. It’s not a cheap affair either. Between 2015 and 2019, the agency burned $100 millionthrough its phone surveillance program, only to yield two leads into two separate cases. That sort of return on investment is abysmal, even by public spending standards.
What the defense team says — A defendant’s lawyer, Joshua Dratel, told Politico that the result carried a glaringly obvious lesson that “lack of transparency in the entire process compromises individual rights of those charged with crimes as well as those never charged – including those Americans whose telephone metadata was collected and retained.”
Edward Snowden gets multiple mentions in the report. In 2013, Snowden revealed that the NSA tapped directly into the massive servers belonging to Yahoo!, Microsoft, Facebook, and others under its Prism program. Furthermore, Snowden explained, the NSA was able to monitor more than 600 million phone conversations on a daily basis.
The NSA grossly over-reached using safeguarding American security as the justification when it got caught. But the fact that it took seven years to explicitly state this in a court is evidence of how long America has to go before it can truly contend with and rectify its sprawling surveillance state. It also leaves one wondering what’s currently underway we’ll only find out about in a decade… if at all.