Can the NSA be checked?

Group argues that NSA eavesdropping has a chilling effect on speech

It's been nearly two years since former National Security Agency contractor Edward Snowden leaked documents to the media revealing the existence of a massive government spying program that scoops up data on millions of Americans' private phone and Internet communications without their knowledge or consent. Civil liberties groups have challenged the mass surveillance as a violation of the Fourth Amendment, which protects citizens against unlawful searches and seizures. But most of those cases remain tied up in the courts. Meanwhile, the agency has continued its data collection activities while refusing to release details about its activities on national security grounds.

That is why the American Civil Liberties Union opened a new legal front against the NSA this week based in part on the First Amendment's guarantee of freedom of speech. In a lawsuit filed on behalf of the Wikimedia Foundation, which operates the popular online reference site Wikipedia; Amnesty International USA; the conservative Rutherford Institute and other plaintiffs, the ACLU says that one of the agency's programs, called "Upstream surveillance," will discourage people with sensitive information from sharing it online for fear it could be traced back to them by government eavesdroppers. The program thus could have an unconstitutional chilling effect on free speech, the group argues.

The lawsuit is the latest attempt to rein in what many see as an out-of-control spy agency accountable neither to the public nor, for all practical purposes, to the elected officials responsible for overseeing it. Most Americans recognize the need to defend the nation against terrorist threats and foreign adversaries bent on attacking U.S. citizens and interests around the world. But they are also uncomfortable with the idea of constantly living under the eye of an omnipotent "Big Brother" who at any time can peer into the most intimate aspects of their personal and private lives. In an era in which threats can emanate from any corner of the globe — as well as from the neighbor down the street — a delicate balance must be struck between security and privacy. But that balance must rest on checks, balances and oversight.

The NSA's Upstream bulk data collection program reportedly is different from those that capture cell phone and email communications because it targets data flowing through the high-capacity cables, switches and routers that move Internet traffic through the U.S. — the so-called "backbone" of the Internet — rather than devices of individual users. As a result, massive quantities of communications coming into or out of this country are captured, copied and stored indefinitely at the agency's massive data collection facilities. Since the Internet is set up so that messages frequently cross international borders as they bounce from one server to another, the agency's storage sites eventually accumulate data on nearly everyone who ventures online.

Given the global reach of the NSA's snooping, civil liberties advocates have reason to fear the program will intimidate people with sensitive information from sharing it on the Internet. Victims of human rights abuses, foreign government officials, journalists and others all may have good reason to be concerned about being targeted for retaliation if their identities are revealed, and thus choose to remain silent rather than risk exposure. It's not an idle concern; for the people who find themselves in such situations, the necessity of remaining anonymous can literally be a matter of life and death.

Soon after Mr. Snowden's revelations about the extent of the NSA's domestic surveillance programs, a presidential advisory committee urged President Barack Obama to adopt broad new measures to protect Americans' privacy rights and bring greater transparency to the agency's operations. But though Mr. Obama came into office pledging to make government more open and accountable, little of substance has changed since 2013. The Foreign Intelligence Surveillance Court set up to oversee the agency still works under a blanket of secrecy that makes it impossible for citizens to know whether it is operating in accordance with the law, and surveillance technology has evolved so rapidly there's a real question of whether it has outstripped officials' ability to ensure its use passes constitutional muster.

For example, last month a federal judge in California threw out a case challenging the agency's bulk collection of Internet data after finding that the plaintiffs' version of significant operational details of the Upstream collection process was inaccurate. But the judge said he couldn't reveal what the inaccuracies were because that would harm national security. In effect the court ruled that even though the plaintiffs' communications may have been intercepted, the case couldn't proceed unless they could show how the surveillance worked — something they could not know since that information is classified. Such slippery conundrums seem to keep popping up to block every effort to hold the NSA accountable for its activities, which doesn't bode well for the ACLU's latest lawsuit. Nonetheless, it's an effort that must be made if we are ever to enforce limits on what data the government can collect in our name.

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