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
July 12, 2014 -- Updated 1815 GMT (0215 HKT)
To prevent war with North Korea over a comedy, what would Dennis Rodman say to Kim Jong Un? Movie critic Gene Seymour weighs in.
July 11, 2014 -- Updated 1315 GMT (2115 HKT)
Michael Werz says in light of the spying cases, U.S. is seen as a paranoid society that can't tell friends from foes.
July 11, 2014 -- Updated 1317 GMT (2117 HKT)
Eric Liu explains why in his new book, he calls himself "Chinese American" -- without a hyphen.
July 11, 2014 -- Updated 1512 GMT (2312 HKT)
John Bare says hands-on learning can make a difference in motivating students to acquire STEM skills.
July 11, 2014 -- Updated 1320 GMT (2120 HKT)
Karl Alexander and Linda Olson find blacks and whites live in urban poverty with similar backgrounds, but white privilege wins out as they grow older.
July 10, 2014 -- Updated 1620 GMT (0020 HKT)
Frida Ghitis says a poll of 14 Muslim-majority nations show people are increasingly opposed to extremism.
July 10, 2014 -- Updated 1828 GMT (0228 HKT)
Ruben Navarrette says spending more on immigation enforcement isn't going to stop the flow of people seeking refuge in the U.S.
July 10, 2014 -- Updated 2048 GMT (0448 HKT)
Faisal Gill had top security clearance and worked for the Department of Homeland Security. That's why it was a complete shock to learn the NSA had him under surveillance.
July 10, 2014 -- Updated 1841 GMT (0241 HKT)
Kevin Sabet says the scientific verdict is that marijuana can be dangerous, and Colorado should be a warning to states contemplating legalizing pot.
July 9, 2014 -- Updated 2047 GMT (0447 HKT)
World War I ushered in an era of chemical weapons use that inflicted agonizing injury and death. Its lethal legacy lingers into conflicts today, Paul Schulte says
July 10, 2014 -- Updated 1137 GMT (1937 HKT)
Tom Foley and Ben Zimmer say Detroit's recent bankruptcy draws attention to a festering problem in America -- cities big and small are failing to keep up with change.
July 10, 2014 -- Updated 1201 GMT (2001 HKT)
Mel Robbins says many people think there's "something suspicious" about Leanna Harris. But there are other interpretations of her behavior
July 9, 2014 -- Updated 1753 GMT (0153 HKT)
Amy Bass says Germany's rout of Brazil on its home turf was brutal, but in defeat the Brazilian fans' respect for the victors showed why soccer is called 'the beautiful game'
July 9, 2014 -- Updated 2107 GMT (0507 HKT)
Aaron Carroll explains how vaccines can prevent illnesses like measles, which are on the rise
July 9, 2014 -- Updated 0008 GMT (0808 HKT)
Aaron Miller says if you think the ongoing escalation between Israel and Hamas over Gaza will force a moment of truth, better think again
July 8, 2014 -- Updated 1903 GMT (0303 HKT)
Norman Matloff says a secret wage theft pact between Google, Apple and others highlights ethics problems in Silicon Valley.
July 8, 2014 -- Updated 2237 GMT (0637 HKT)
The mother of murdered Palestinian teenager Mohammed Abu Khder cries as she meets Palestinian president Mahmoud Abbas in Ramallah, West Bank on July 7, 2014.
Naseem Tuffaha says the killing of Israeli teenagers has rightly brought the world's condemnation, but Palestinian victims like his cousin's slain son have been largely reduced to faceless, nameless statistics.
ADVERTISEMENT