NSA Scandal: More Thoughts and What's Next?

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By William Peacock, Esq. on June 07, 2013 12:59 PM

By now, you're probably familiar with the National Security Administration's domestic phone surveillance scandal. If you aren't, we covered it yesterday.

Though lawmakers are mostly parrying inquiries by stating that the domestic surveillance program has been ongoing for over seven years and is legal per the Patriot Act, such non-answers won't suffice in the long-term. One would imagine with the nation now aware of the extent of the NSA's domestic spying, that the status quo won't hold.

It May be Useful for Antiterrorism

The truth is, while the cell phone metadata requests may well be over-reaching and an invasion of our citizens' right to privacy, the data is almost certainly beneficial to combating terrorist attacks.

A terrorist uses a cheap prepaid cell phone. After a few calls, he tosses it and grabs another. If the Feds had to go to court every time the suspect swapped phone numbers, the terrorist would always be five phones ahead. By indexing all calls and locations, they can instantly track calls to and from every person he calls. If he gets a new phone, does he call all of the same people? Where does he routinely visit? Can this help to track down additional suspects?

This Could End the Patriot Act

The Patriot Act was controversial when passed, but now that every person in America is probably having their cell phone metadata seized-and-searched (do you really think they stopped with Verizon only? Are terrorists that picky about reception?), the full implications of the law's collision with Fourth Amendment rights are becoming more clear.

Take the political and media pressure, add millions of angry American citizens, and if the courts don't overturn part or all of the law, Congress might actually be forced to act first. With any luck.

Lawsuits. Lots of 'Em

This isn't the first time there were whispers of NSA phone surveillance, though this is may be the first time there is tangible proof. Prior lawsuits against a cell phone carrier failed and are no longer possible thanks to a 2008 law that provided immunity to telecommunications companies that comply with court orders.

Still, that didn't stop the Electronic Frontier Foundation from continuing to fight the NSA in court. In Jewel, which is still pending, the EFF sued the NSA after the security agency routed copies of AT&T users' Internet traffic into a room controlled by the NSA. Note that in Jewel, it wasn't cell phone metadata. It was actual Internet data.

While suing Verizon may be a dead end due to the aforementioned immunity, a lawsuit against the NSA might be possible. A prior case, brought by the American Civil Liberties Union against the NSA, led to district court ruling against the NSA's domestic surveillance practices. However, the Sixth Circuit reversed that decision on an issue of standing, as none of the plaintiffs could prove that they were monitored. Now, with the release of the Verizon court order, anyone who makes a call to or from a Verizon phone, theoretically, would have standing.

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