Why has the National Security Agency been collecting data on every phone call, email message, and Internet search made by tens of millions of Americans? Because it can.
It can in two ways. Technologically, the NSA and its private contractors have the ability to amass, store, and sort through unfathomable quantities of digital data, so much so that the stash is measured not in megabytes or gigabytes (which were extraordinarily massive just a few years ago) but yottabytes, which means a trillion trillion bytes (a number that’s written out as 10 followed by 24 zeroes). To put it another way, the data piling up in the NSA’s storage centers equals the amount of bits and bytes in 700 trillion DVDs.
But the NSA can also do what it’s doing legally - sort of. This is the part of this story that many find hard to grasp. After all, the 4th Amendment to the U.S. Constitution reads in full:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Collect everything, search through it later
On its face, this would seem to bar the sorts of “searches and seizures” that the NSA is conducting routinely. True, the amendment bans “unreasonable” searches and seizures, suggesting that reasonable ones are permitted. But it also states that, in order to be deemed reasonable, the warrant for a search has to specify the place to be searched and the person or thing to be seized.
By contrast, the NSA’s data sweeps are, by nature, vast, broad and unspecific. The whole idea is to collect (seize) everything indiscriminately and then go back and search through it later, as necessary. (As one official recently put it: in order to find a needle in a haystack, you first have to have the haystack.)
The legalistic maneuver in allowing these sweeps to take place is the Patriot Act, which Congress hastily passed a few days after the terrorist attacks of September 11, 2001. Specifically, Section 215 of the act gives intelligence and law-enforcement agencies broad authority to request “any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism.”
Section 215 places only three limits on this authority. First, Americans cannot be investigated solely on the basis of something they have said or written. Second, the requests must be approved by a special court, which has been established by the Foreign Intelligence Surveillance Act (FISA). Third, Congress must be informed of these requests.
Indifferent to the truth
The first restriction is very important; it ensures that the 1st Amendment to the Constitution, guaranteeing the right of free speech, remains supreme. But the other two limits are very loose. The proceedings and rulings of the FISA court are themselves top secret; and its few public reports show that the court has rejected less than 1 percent of the requests. As for Congress, oversight powers are explicitly limited to the House and Senate Intelligence Committees, which receive these reports only once every six months; their hearings, which might take place more frequently, are also conducted in secret.