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

21 Pages Posted: 19 Dec 2013

See all articles by John Yoo

John Yoo

University of California at Berkeley School of Law; American Enterprise Institute; Stanford University - The Hoover Institution on War, Revolution and Peace

Date Written: December 1, 2013

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.

Suggested Citation

Yoo, John Choon, 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: https://ssrn.com/abstract=2369192

John Choon Yoo (Contact Author)

University of California at Berkeley School of Law ( email )

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American Enterprise Institute ( email )

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Stanford University - The Hoover Institution on War, Revolution and Peace ( email )

Stanford, CA 94305-6010
United States

HOME PAGE: http://https://www.hoover.org/profiles/john-yoo

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