Skip to main content

Has the NSA gone rogue?

By Christopher Slobogin, Special to CNN
updated 11:19 AM EDT, Thu October 31, 2013
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
updated 8:35 AM EDT, Mon July 21, 2014
Frida Ghitis: Anger over MH17 is growing against pro-Russia separatists. It's time for the Dutch government to lead, she writes
updated 8:27 AM EDT, Mon July 21, 2014
Julian Zelizer says President Obama called inequality the "defining challenge" of our time but hasn't followed through.
updated 7:57 AM EDT, Mon July 21, 2014
Gene Seymour says the 'Rockford Files' actor worked the persona of the principled coward, charming audiences on big and small screen for generations
updated 10:17 AM EDT, Mon July 21, 2014
Daniel Treisman says that when the Russian leader tied his fate to the Ukraine separatists, he set the stage for his current risky predicament
updated 12:42 PM EDT, Fri July 18, 2014
Andrew Kuchins says urgent diplomacy -- not sanctions -- is needed to de-escalate the conflict in Ukraine that helped lead to the downing of an airliner there.
updated 9:50 PM EDT, Fri July 18, 2014
Jim Hall and Peter Goelz say there should be an immediate and thorough investigation into what happened to MH17.
updated 11:07 AM EDT, Fri July 18, 2014
Pilot Bill Palmer says main defense commercial jets have against missiles is to avoid flying over conflict areas.
updated 1:55 PM EDT, Sun July 20, 2014
Valerie Jarrett says that working women should not be discriminated against because they are pregnant.
updated 3:53 PM EDT, Mon July 21, 2014
David Wheeler says the next time you get a difficult customer representative, think about recording the call.
updated 3:33 PM EDT, Fri July 18, 2014
Newt Gingrich says the more dangerous the world becomes the more Obama hides in a fantasy world.
updated 6:11 AM EDT, Fri July 18, 2014
Michael Desch: It's hard to see why anyone, including Russia and its local allies, would have intentionally targeted the Malaysian Airlines flight
updated 3:14 PM EDT, Thu July 17, 2014
LZ Granderson says we must remember our visceral horror at the news of children killed in an airstrike on a Gaza beach next time our politicians talk of war
updated 8:06 AM EDT, Thu July 17, 2014
Sally Kohn says now the House GOP wants to sue Obama for not implementing a law fast enough, a law they voted down 50 times, all reason has left the room.
updated 8:14 AM EDT, Thu July 17, 2014
A street sign for Wall Street
Sens. Elizabeth Warren, John McCain and others want to scale back the "too big to fail" banks that put us at risk of another financial collapse.
updated 4:16 PM EDT, Thu July 17, 2014
Newt Gingrich writes an open letter to Robert McDonald, the nominee to head the Veterans Administration.
updated 12:01 PM EDT, Fri July 18, 2014
Paul Begala says Dick Cheney has caused an inordinate amount of damage yet continues in a relentless effort to revise the history of his failures.
updated 10:04 AM EDT, Fri July 18, 2014
Kids who takes cell phones to bed are not sleeping, says Mel Robbins. Make them park their phones with the parents at night.
updated 1:29 PM EDT, Thu July 17, 2014
Buzz Aldrin looked at planet Earth as he stood on talcum-like lunar dust 45 years ago. He thinks the next frontier should be Mars.
updated 2:04 PM EDT, Wed July 16, 2014
Mark Zeller never thought my Afghan translator would save his life by killing two Taliban fighters who were about to kill him. The Taliban retaliated by placing him on the top of its kill list.
updated 11:18 AM EDT, Thu July 17, 2014
Jeff Yang says an all-white cast of Asian characters in cartoonish costumes is racially offensive.
updated 9:24 PM EDT, Wed July 16, 2014
Gary Ginsberg says the late John F. Kennedy Jr.'s reaction to an event in 1995 summed up his character
updated 12:41 PM EDT, Wed July 16, 2014
Meg Urry says most falling space debris lands on the planet harmlessly and with no witnesses.
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT