Legal Geek No. 6 - Has The Stone Finally Turned on the NSA?

Welcome back to Legal Geek! The topic this week is whether privacy rights are finally winning the day against the NSA's record keeping on all U.S. citizens.


https://archive.org/details/LegalGeekEp06

Depending on your views of privacy laws and your political leanings, the downstream effects of the horrible 9/11 attacks on America are a more protected country, or a more oppressive Big Brother society. When the USA Patriot Act went into effect shortly after those attacks, the floodgates opened for the NSA to tap into bulk phone and e-mail communications of all citizens to look for outliers that could indicate potential terrorism.

However, this began to highlight the sheer amount of tracking and information the government and companies were beginning to accrue on regular U.S. citizens. Although such tracking can lead to nifty innovations such as the anticipatory shipping methods of Amazon from a previous episode, it can also make you feel like your rights to be a private citizen are impinged.

With both the dramatically different Bush and Obama administrations extending the rights of the government to keep wiretapping communications, the NSA keeps on collecting information. But simply collecting information is not enough apparently, as the NSA recently petitioned to hold onto records beyond the five year period that was authorized by Congress in the Patriot Act.

The NSA argued that the destruction of five-year old records and metadata needed to be stopped because there are six lawsuits ongoing against the government where those records may be subject to discovery requests. But these lawsuits are ironically from citizens suing to try and stop or limit the NSA's powers due to privacy rights, so it is unclear that these plaintiffs would ever want to encourage those records to be held for longer periods of time.

Thankfully, the US Foreign Intelligence Surveillance Court deemed this extension would be contrary to the law and policy concerns. First, the five-year destruction policy is by Congressional statute, which trumps the common law court-made rules of avoiding evidence spoilation during civil trials. Second, the value of the information as foreign terrorism intelligence is basically gone after five years, so there is no policy reason to hang onto these records longer. Thus, the NSA has been turned back from a further extension of the much-maligned wiretapping and record-gathering rights. While that will not end the story, it does prove there is a limit at which our privacy rights trump the NSA.

Bottom line: Although last week's decision by the Surveillance Court is a minor victory for privacy, there is a long way to go for advocates of true Internet privacy. It will be interesting to watch how Snowden and other Internet privacy advocates continue to try and turn the tide against the NSA.

------

Thanks for reading. Please provide feedback and segment topic suggestions to me on Twitter @BuckeyeFitzy or in the comments below.