Why the NSA’s defense of mass data collection makes no sense

Bruce Schneier writes: The basic government defense of the NSA’s bulk-collection programs — whether it be the list of all the telephone calls you made, your email address book and IM buddy list, or the messages you send your friends — is that what the agency is doing is perfectly legal, and doesn’t really count as surveillance, until a human being looks at the data.

It’s what Director of National Intelligence James R. Clapper meant when he lied to Congress. When asked, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” he replied, “No sir, not wittingly.” To him, the definition of “collect” requires that a human look at it. So when the NSA collects — using the dictionary definition of the word — data on hundreds of millions of Americans, it’s not really collecting it, because only computers process it.

The NSA maintains that we shouldn’t worry about human processing, either, because it has rules about accessing all that data. General Keith Alexander, director of the NSA, said that in a recent New York Times interview: “The agency is under rules preventing it from investigating that so-called haystack of data unless it has a ‘reasonable, articulable’ justification, involving communications with terrorists abroad, he added.”

There are lots of things wrong with this defense.

First, it doesn’t match up with U.S. law. Wiretapping is legally defined as acquisition by device, with no requirement that a human look at it. This has been the case since 1968, amended in 1986.

Second, it’s unconstitutional. The Fourth Amendment prohibits general warrants: warrants that don’t describe “the place to be searched, and the persons or things to be seized.” The sort of indiscriminate search and seizure the NSA is conducting is exactly the sort of general warrant that the Constitution forbids, in addition to it being a search by any reasonable definition of the term. The NSA has tried to secretly redefine the word “search,” but it’s forgotten about the seizure part. When it collects data on all of us, it’s seizing it.

Third, this assertion leads to absurd conclusions. [Continue reading…]

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