According to The Guardian, the NSA responded Saturday to a request from Senator Bernie Sanders of Vermont about the NSA’s activities with respect to members of Congress. In its statement, the NSA implied that it monitors the communications of Members of Congress as it does any other American. Sanders asked whether the NSA “spied” on Members of Congress, defining “spying” as “gathering metadata on calls made from official or personal phones, content from websites visited or emails sent, or collecting any other data from a third party not made available to the general public in the regular course of business.” The NSA responded, in part, that “Members of Congress have the same privacy protections as all US persons.” In other words, Members of Congress have no privacy, either.
Do you think now we might see some legislative action on the issue of the third-party doctrine? Yes, normally I would say this story is bad news, because having a security agency spying on members of the legislative branch might interfere with our system of checks and balances. But in today’s context I’m more interested in seeing a fire lit under the feet of our legislators.
(For my argument as to why and how we should eliminate the third-party doctrine, check out “Don’t Tread on My Metadata” at PJ Media.)
Maybe this revelation by the NSA will motivate one of our better politicians on the issue of privacy, Senator Rand Paul, to get behind the push to give some sort of clemency to Edward Snowden. Again, according to The Guardian, while Paul has spoken in a sympathetic manner about Snowden, he has stopped short of calling for any sort of leniency or clemency. To me that’s disappointing, especially given the fact that Snowden’s revelations are making possible Paul’s class-action lawsuit against the NSA, something that will no doubt be a big fundraiser for his campaign.
What is also disappointing is that there is nothing about the substance of the lawsuit on his site, just a form to fill out. I want to know what theory will be used to challenge the NSA’s spying activities. I have called and emailed Senator Paul’s staff to try to get something more specific than Paul’s framing of the issue during last Friday’s interview: “whether or not constitutionally you can have a single warrant apply to millions of people.” Even that vague framing of the issue may be enough to prompt the Court to reconsider the third-party doctrine, but it would be better if the issue were put to the Court directly.
The good news is that, should the Court eventually do the right thing and eliminate the third-party doctrine, technology is already available that will allow the NSA to do its job just fine without indiscriminate collection of bulk metadata. Matt Blaze, a security expert writing for The Guardian, says that the NSA’s recently revealed “Tailored Access Operations,” which “scare the daylights out of [him],” will allow the NSA to get the information they need to protect national security without routine “backdoor access” to our personal data. Writes Blaze, “as well as TAO works (and it appears to work quite well indeed), they can’t deploy it against all of us – or even most of us.”
But I bet they could deploy it against all Members of Congress 😉
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