The Legality of the National Security Agency's Bulk Data Surveillance Programs
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
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: 21Accepted Paper Series
Date posted: December 19, 2013
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