Skip to main content

Has the NSA gone rogue?

By Christopher Slobogin, Special to CNN
October 31, 2013 -- Updated 1519 GMT (2319 HKT)
President Obama has had to answer reports that the U.S. monitored German Chancellor Angela Merkel's cell phone.
President Obama has had to answer reports that the U.S. monitored German Chancellor Angela Merkel's cell phone.
STORY HIGHLIGHTS
  • Evidence indicates that the NSA stores contents of phone conversations and e-mails
  • NSA can investigate only when it can show reason it might be linked to foreign threat
  • Christopher Slobogin: If it is monitoring many thousands of calls, are all those justified?
  • Slobogin: Congress must make sure the NSA abides by the laws it has enacted

Editor's note: Christopher Slobogin, who holds Vanderbilt Law School's Milton R. Underwood Chair in Law, is the author of "Privacy at Risk: The New Government Surveillance and the Fourth Amendment."

(CNN) -- The National Security Agency scandal keeps getting juicier. Recent revelations, triggered by ex-NSA employee Edward Snowden's earlier disclosures, indicate that the National Security Agency not only collects volumes of metadata about the phone numbers people use, it routinely stores the contents of phone conversations, text messages, e-mails and Internet activity.

Former Vice President Dick Cheney explains that the collection of all of this information is crucial, because NSA staffers cannot know what bits of it will turn out to be relevant to a counterterrorist investigation.

Christopher Slobogin
Christopher Slobogin

In fact, the Foreign Intelligence Surveillance Court has agreed with that argument in approving bulk collection of American as well as foreign metadata for the past seven years. And if metadata must be stored for this purpose, it is an easy step from there to conclude that the contents of communications must be stored as well.

The key question then becomes when the NSA may "query" or identify the source of the metadata it has stored and read the communications it has collected. The NSA reports that it conducts queries of metadata only when it has a "reasonable, articulable" suspicion that a number is linked to a foreign threat that has been identified as such by the Foreign Intelligence Surveillance Court. Section 703 of the Patriot Act, as amended in 2008, limits looking at the contents of a communication to situations where the court has found probable cause to believe that information about a foreign threat will be revealed.

Glenn Greenwald on NSA spying on allies
Spy Directors fire back on Capitol Hill
NSA chief: Europeans shared data

Although one could ask for more oversight, this isn't a bad set of legal safeguards. If they were followed, the European naysayers about the NSA's exploits would not be so hot under the collar.

Many countries besides the United States collect and analyze electronic communications for national security purposes. The Wall Street Journal reported Wednesday that France and Spain helped our surveillance efforts by handing over phone records they collected on their citizens. Illustrated by the ease with which this spying took place, these countries impose fewer limitations on their surveillance activities than we do.

The real question is whether we follow those limitations. Although the NSA may not conduct queries or examine content unless it or a court determines that "national security" is at stake, national security is apparently at stake quite often, if the recent reports about monitoring hundreds of thousands of foreigners' calls as well as the calls of foreign leaders are true.

American journalist Glenn Greenwald, the principal conduit for Snowden's revelations, even claims that the NSA is as interested in economic intelligence as it is in exposing terrorist plots. He offers as evidence documents showing that the U.S. has spied on conferences about negotiating economic agreements and on oil companies and ministries that oversee mines and energy resources.

This may be the real reason European leaders are so incensed. Surveillance of terrorists is fine and probably can help them quite a bit. But surveillance of politicians and capitalists crosses boundaries that they might think should not be crossed, at least unless and until their intelligence agencies can do it as well as and as often as the U.S. can.

In the meantime, Congress should get serious about making sure the NSA abides by the laws it has enacted.

Follow us on Twitter @CNNOpinion.

Join us on Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of Christopher Slobogin.

ADVERTISEMENT
Part of complete coverage on
April 23, 2014 -- Updated 1317 GMT (2117 HKT)
Alexander Motyl says as Russian President Putin snarled at Ukraine, his foreign minister was signing a conciliatory accord with the West. Whatever the game, the accord is a major stand down by Russia
April 23, 2014 -- Updated 1229 GMT (2029 HKT)
Les Abend says at every turn, the stowaway teen defied the odds of discovery and survival. What pilot would have thought to look for a person in the wheel well?
April 22, 2014 -- Updated 2247 GMT (0647 HKT)
Q & A with artist Rachel Sussman on her new book of photographs, "The Oldest Living Things in the World."
April 22, 2014 -- Updated 1958 GMT (0358 HKT)
Martin Blaser says the overuse of antibiotics threatens to deplete our bodies of "good" microbes, leaving us vulnerable to an unstoppable plague--an "antibiotic winter"
April 22, 2014 -- Updated 1737 GMT (0137 HKT)
John Sutter asks: Is it possible to eat meat in modern-day America and consider yourself an environmentalist without being a hypocrite?
April 22, 2014 -- Updated 1538 GMT (2338 HKT)
Sally Kohn notes that Meb Keflezighi rightly was called an American after he won the Boston Marathon, but his status in the U.S. once was questioned
April 22, 2014 -- Updated 1256 GMT (2056 HKT)
Denis Hayes and Scott Denman say on this Earth Day, the dawn of the Solar Age is already upon us and the Atomic Age of nuclear power is in decline
April 21, 2014 -- Updated 2036 GMT (0436 HKT)
Retired Coast Guard officer James Loy says a ship captain bears huge responsibility.
April 21, 2014 -- Updated 1708 GMT (0108 HKT)
Peter Bergen says the latest strikes are part of an aggressive U.S. effort to target militants, including a bomb maker
April 21, 2014 -- Updated 1345 GMT (2145 HKT)
Cynthia Lummis and Peter Welch say 16 agencies carry out national intelligence, and their budgets are top secret. We need to know how they are spending our money.
April 21, 2014 -- Updated 1235 GMT (2035 HKT)
Julian Zelizer says President Obama knows more than anyone that he has much at stake in the midterm elections.
April 22, 2014 -- Updated 1255 GMT (2055 HKT)
Eric Sanderson says if you really want to strike a blow for the environment--and your health--this Earth Day, work to get cars out of cities and create transportation alternatives
April 21, 2014 -- Updated 1408 GMT (2208 HKT)
Bruce Barcott looks at the dramatic differences in marijuana laws in Colorado and Louisiana
April 18, 2014 -- Updated 2047 GMT (0447 HKT)
Jim Bell says NASA's latest discovery supports the notion that habitable worlds are probably common in the galaxy.
April 18, 2014 -- Updated 1817 GMT (0217 HKT)
Jay Parini says even the Gospels skip the actual Resurrection and are sketchy on the appearances that followed.
April 18, 2014 -- Updated 1752 GMT (0152 HKT)
Graham Allison says if an unchecked and emboldened Russia foments conflict in a nation like Latvia, a NATO member, the West would have to defend it.
April 18, 2014 -- Updated 1311 GMT (2111 HKT)
John Sutter: Bad news, guys -- the pangolin we adopted is missing.
April 21, 2014 -- Updated 1825 GMT (0225 HKT)
Ben Wildavsky says we need a better way to determine whether colleges are turning out graduates with superior education and abilities.
April 18, 2014 -- Updated 1026 GMT (1826 HKT)
Charles Maclin, program manager working on the search and recovery of Malaysia Flight 370, explains how it works.
April 18, 2014 -- Updated 1250 GMT (2050 HKT)
Jill Koyama says Michael Bloomberg is right to tackle gun violence, but we need to go beyond piecemeal state legislation.
April 17, 2014 -- Updated 1845 GMT (0245 HKT)
Michael Bloomberg and Shannon Watts say Americans are ready for sensible gun laws, but politicians are cowed by the NRA. Everytown for Gun Safety will prove the NRA is not that powerful.
ADVERTISEMENT