June 12, 2013

NSA Surveillance Is Legal And Not Targeting Average Americans, Says Texas A&M Professor

Supposed “bombshell revelations” about NSA surveillance programs are, at this point, much ado about nothing, says a professor at Texas A&M University who contends that the government’s monitoring of phone and Internet communications has been going on for years, is completely legal and is not targeting the average U.S. citizen.

Ron Sievert

Ron Sievert

Ron Sievert, a law professor and director of the Certificate in Advanced International Affairs Program at Texas A&M’s Bush School of Government and Public Service, says the so-called “whistleblower” Edward Snowden, a former CIA employee, did leak classified information about NSA surveillance programs, but the information was about operations that follow the law.

“Everything that has been disclosed as of this date is not illegal or unconstitutional,” he notes.  “Anyone who is saying that what the government is doing is illegal doesn’t understand the law.”

Sievert, a former Department of Justice litigator and author of the books “Cases And Materials On U.S. Law And National Security” and “Defense, Liberty and the Constitution,” has long studied issues related to the law and national security, and says despite media reports to the contrary, “if you are a U.S. citizen and not the subject of an investigation, then no one is reading your emails or listening to your phone calls.”

Claims that President Obama has granted sweeping new powers to intercept U.S. communications are simply not true, Sievert says.

“And this ‘whistleblower’ probably didn’t understand that these programs are not illegal,” he adds.

One of the programs in question, known as PRISM, involved the monitoring of emails of foreign citizens outside the country, Sievert says, not American citizens.

Since only the emails of foreign citizens were intercepted, Sievert says the program was not unconstitutional. “The Supreme Court held in the Verdugo case (1990) that foreign citizens do not have our 4th Amendment Constitutional right [against unreasonable search and seizure], and so there is no constitutional violation,” he insists. “Moreover, it appears these were monitored pursuant to a court order.”

The other surveillance program under suspicion, the collection of phone call data, does involve U.S. citizens, but Sievert says, “they’re only looking at the numbers that are being called, not listening to the content of the calls.”

Seivert says this type of phone data collection has been legal for decades.

“The Supreme Court held in the 1970s that you do not have a constitutionally protected expectation of privacy in what you share with a third party and, of course, you share the numbers you call with the phone company and your Internet contacts with Internet service providers,” he explains. “The ISP shares those contacts with advertisers, and that’s how you get targeted pop-ups.”

He says that later, The Electronic Communications Privacy Act of 1986, amended in 1994, gave the federal government the right to collect data on phone numbers being called. Then in 2001, The Patriot Act expanded that to include email addresses.

Collecting data on the numbers, times and duration of phone calls can aid an investigation, says Sievert because, “investigators may be able to make assumptions as to content by looking at patterns of calls. This may require collecting an enormous amount of data, but this type of data collection is legal as long as they have a court order and it’s relevant to a federal investigation or for intelligence purposes.”

So why are people so up-in-arms about legal programs that have been going on for years?

“The ‘whistleblower’ disclosed the nature and extent of the programs,” the professor explains. “No one knew that the government was accumulating a vast amount of phone call data for the purpose of determining patterns that might be characteristic of terrorist activity.

“He also disclosed that with foreign communications, the government is looking at content, but again, foreigners do not have our constitutional rights. These are things we’ve been doing for a long time, it’s just the extent and the specifics of the programs had not been disclosed until now.”

And as for widespread media chatter about NSA surveillance on the average U.S. citizen, Sievert dismisses it. “They’re trying to prevent terrorism; the NSA doesn’t care if you’re calling your bookie.”

Of course there are instances when the federal government might listen to the phone calls or read the emails of an American citizen. “It’s a much higher standard for a U.S. citizen,” Sievert notes. “They must have probable cause to believe that you are an agent of a foreign power or that you’re committing a crime, and they must have a court order that says the surveillance is relevant to a proper purpose. It’s common that the affidavit submitted to the judge to establish that probable cause is greater than 60 pages in length.”

Sievert points out that erroneous reports of “illegal” or “unconstitutional” government surveillance programs are confusing people. “These programs are legal, so if people don’t like them, they need to change the law.”

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Media Contact: Lesley Henton, News and Information Services at Texas A&M University; 979-845-5591, lshenton@tamu.edu

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3 Comments to NSA Surveillance Is Legal And Not Targeting Average Americans, Says Texas A&M Professor

  1. This has more to do with the “direct server access” capabilities of the Government. If they are able to access our information directly on the infrastructure of these private companies, can we trust that all necessary precautions are being taken to protect our civil liberties and privacy?

    Your quote was “if you are a U.S. citizen and not the subject of an investigation, then no one is reading your emails or listening to your phone calls.”, what assurances can you or the government give that this is true? I understand this is a law that these organizations must follow, but what assurances do I have that the employees and subcontractors are following these practices?

  2. Robert Hegedus on June 12th, 2013
  3. Of course it is legal — the Patriot Act has ensured the increased degree of data collected. The focus on combating terrorism is misplaced; more emphasis should be placed on U.S. foreign policy and its implications on foreign relations (quite distinct from policy). As for constitutionality, I completely disagree with the professor. I suppose we are all entitled to our opinions. Defending the government’s actions that blur the meaning of the 4th Amendment, however, is a funny way to go.

  4. John Leask on June 15th, 2013
  5. I believe that the IRS scandal has prompted many of us to doubt the trustworthiness and fairness of our federal programs. Therefore, any discussion of the NSA leaks should be explored in conjunction with the IRS news.

  6. Jim Murphy on June 18th, 2013
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