Based on What We Know, Is the NSA Verizon Request Legal?
Here’s what we know about a National Security Agency program that collects vast amounts of data on the electronic activity of Americans: While controversial, a leaked secret document authorizing the collection makes it clear that the Foreign Intelligence Surveillance Court has decided that the collection of metadata for every call made in and into the United States is legal under Section 215 of the U.S.A. Patriot Act.
What we don’t know is why. That’s because the opinion of the FISC is secret.
In an effort to get some kind of answer, we asked legal scholars to interpret the so-called business records section of the post-Sept. 11 legislation to determine what in it could — or could not — justify the government collection of three months’ worth of all Verizon phone calls made in and into the United States.
Here are their answers, with some of our annotations added for clarity and background:
Kent Greenfield, professor of law at Boston College:
By all appearances, the program does not easily fit within the Patriot Act. The provision cited by the court allows the government to petition for access to “business records” that are “relevant” to “an authorized investigation” to “protect against international terrorism.” If the NSA is gathering billions of daily phone records, only a sliver will be relevant to any specific investigation. The gathering of the rest would seem to go too far.
Having said that, I could imagine a reasonable interpretation of the statute that allows for the data dump, especially if bound by so-called minimization procedures that control how the data are actually used. The problem is that the FISA court’s interpretation of the statute is secret. We do not have access to the court’s explanation of how the law allows this surveillance.
So the secrecy of the surveillance is not nearly as troubling as the secrecy of its justification. Democracy can survive the former and could be eroded by the latter.