Abstract

http://ssrn.com/abstract=2369192
 


 



The Legality of the National Security Agency's Bulk Data Surveillance Programs


John Yoo


University of California at Berkeley School of Law

December 1, 2013

Harvard Journal of Law and Public Policy, Forthcoming
UC Berkeley Public Law Research Paper No. 2369192

Abstract:     
Controversy has arisen again over the federal government’s electronic surveillance efforts to gather intelligence on foreign terrorist groups. Recent disclosures, both authorized and illicit, have described two secret National Security Agency (NSA) programs. The first collects telephone “metadata” such as calling records — but not the content of phone calls — both inside and outside the United States. A second NSA program intercepts the e-mails of non U.S. persons outside the United States. Despite the claims of critics, these programs do not violate the Foreign Intelligence Surveillance Act (FISA), as recently amended by Congress, or the Fourth Amendment to the Constitution. Concerns about the proper balance between these surveillance programs and individual privacy may be appropriate, but they properly fall within the province of Congress and the President to set future national security policy.

Part I of this paper describes the surveillance efforts against al Qaeda within a broader historical and legal context. Part II argues that the programs, as described publicly by authoritative sources, appear to meet statutory requirements. Part III addresses whether the NSA programs are constitutional along two dimensions. It argues that even if some aspect of the NSA programs does not fall within Congress’s authorization for foreign intelligence and counter-terrorism surveillance, it would most likely rest within the President’s Commander-in-Chief authority over the management of war. Second, even if the federal government has the internal authority to conduct surveillance, the Bill of Rights, through the Fourth Amendment, may still prohibit its application to citizens or non-citizens present in the territorial United States. Part III argues, however, that the NSA programs do not violate the Fourth Amendment, as currently interpreted by the federal courts.

Number of Pages in PDF File: 21

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Date posted: December 19, 2013  

Suggested Citation

Yoo, John, The Legality of the National Security Agency's Bulk Data Surveillance Programs (December 1, 2013). Harvard Journal of Law and Public Policy, Forthcoming; UC Berkeley Public Law Research Paper No. 2369192. Available at SSRN: http://ssrn.com/abstract=2369192

Contact Information

John Choon Yoo (Contact Author)
University of California at Berkeley School of Law ( email )
Boalt Hall
890 Simon
Berkeley, CA 94720-7200
United States
510-643-5089 (Phone)
510-643-2673 (Fax)
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