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 12:24 PM EDT, Sat September 20, 2014
John Sutter boarded a leaky oyster boat in Connecticut with a captain who can't swim as he set off to get world leaders to act on climate change
updated 7:22 PM EDT, Fri September 19, 2014
Is ballet dying? CNN spoke with Isabella Boylston, a principal dancer at the American Ballet Theatre, about the future of the art form.
updated 5:47 PM EDT, Fri September 19, 2014
Sally Kohn says it's time we take climate change as seriously as we do warfare in the Middle East
updated 9:02 AM EDT, Fri September 19, 2014
Dean Obeidallah says an Oklahoma state representative's hateful remarks were rightfully condemned by religious leaders..
updated 3:22 PM EDT, Fri September 19, 2014
No matter how much planning has gone into U.S. military plans to counter the Islamic State in Iraq and Syria, the Arab public isn't convinced that anything will change, says Geneive Abdo
updated 11:44 AM EDT, Fri September 19, 2014
President Obama's strategy for destroying ISIS seems to depend on a volley of air strikes. That won't be enough, says Haider Mullick.
updated 9:03 AM EDT, Fri September 19, 2014
Paul Begala says Hillary Clinton has plenty of good reasons not to jump into the 2016 race now
updated 11:01 AM EDT, Fri September 19, 2014
Scotland decided to trust its 16-year-olds to vote in the biggest question in its history. Americans, in contrast, don't even trust theirs to help pick the county sheriff. Who's right?
updated 9:57 PM EDT, Thu September 18, 2014
Ruben Navarrette says spanking is an acceptable form of disciplining a child, as long as you follow the rules.
updated 11:47 AM EDT, Fri September 19, 2014
Frida Ghitis says the foiled Australian plot shows ISIS is working diligently to taunt the U.S. and its allies.
updated 3:58 PM EDT, Fri September 19, 2014
Young U.S. voters by and large just do not see the midterm elections offering legitimate choices because, in their eyes, Congress has proven to be largely ineffectual, and worse uncaring, argues John Della Volpe
updated 9:58 PM EDT, Thu September 18, 2014
Steven Holmes says spanking, a practice that is ingrained in our culture, accomplishes nothing positive and causes harm.
updated 2:31 PM EDT, Thu September 18, 2014
Sally Kohn says America tried "Cowboy Adventurism" as a foreign policy strategy; it failed. So why try it again?
updated 10:27 AM EDT, Thu September 18, 2014
Van Jones says the video of John Crawford III, who was shot by a police officer in Walmart, should be released.
updated 10:48 AM EDT, Thu September 18, 2014
NASA will need to embrace new entrants and promote a lot more competition in future, argues Newt Gingrich.
updated 7:15 PM EDT, Tue September 16, 2014
If U.S. wants to see real change in Iraq and Syria, it will have to empower moderate forces, says Fouad Siniora.
updated 8:34 PM EDT, Wed September 17, 2014
Mark O'Mara says there are basic rules to follow when interacting with law enforcement: respect their authority.
updated 9:05 AM EDT, Tue September 16, 2014
LZ Granderson says Congress has rebuked the NFL on domestic violence issue, but why not a federal judge?
updated 7:49 AM EDT, Tue September 16, 2014
Mel Robbins says the only person you can legally hit in the United States is a child. That's wrong.
updated 1:23 PM EDT, Mon September 15, 2014
Eric Liu says seeing many friends fight so hard for same-sex marriage rights made him appreciate marriage.
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT