Time and again since the world learned the extent of what the NSA was doing, government officials have defended the controversial mass surveillance programs by falling back on one talking point: the NSA programs may be all-powerful, but they have never been abused.
President Obama continually evokes the phase when defending the NSA in public. In his end-of-year press conference, he reiterated, "There continues not to be evidence that the [metadata surveillance] program had been abused". Former NSA chief Michael Hayden says this almost weekly, and former CIA deputy director and NSA review panel member Mike Morrell said it again just before Christmas. This mantra is likely to be repeated often in 2014 as Obama is set to address the nation on government surveillance, and Congress and the president debate whether any reforms are necessary.
There's only one problem: it's not true.
We don't have to look further than the Fisa court opinions that have been released in the past few months (thanks to Freedom of Information Act lawsuits by Electronic Frontier Foundation and American Civil Liberties Union). One of the opinions from 2009 deals directly with the phone metadata surveillance program that has caused so much controversy – the same program a Washington DC district court recently ruled is likely unconstitutional (a federal court in New York just reached the opposite conclusion.)
For years, as new data came into the NSA's database containing virtually every phone call record in the United States, analysts would search over 17,000 phone numbers in it every day. It turns out only about 1,800 of those numbers – 11% – met the legal requirement that the NSA have "reasonable articulable suspicion" that the number was involved in terrorism.
What were the other 89% of the numbers being searched for? We're not exactly sure. But we do know that five years after the metadata program was brought under a legal framework, the Fisa court concluded it had been "so frequently and systematically violated that it can fairly be said that this critical element of the overall … regime has never functioned effectively".
In another recently-released Fisa court opinion (pdf) about the NSA collection of American internet metadata, the court accused the NSA of engaging in "systemic overcollection" for years, and that "'virtually every [metadata] record' generated by this program included some data that had not been authorized for collection". The judge listed the government's "frequent failures to comply with the [surveillance program's] terms", excoriated them for their "apparent widespread disregard of [Fisa court imposed] restrictions", and accused the NSA of committing "longstanding and pervasive violations of the prior orders in this matter".
Does that sound like an agency that has never abused its powers?
Since the Snowden revelations started in June, we've also learned about other abuses, most notably the dozen times NSA analysts have been caught using the agency's vast powers to spy on former spouses or lovers. As the Wall Street Journal reported, "the practice isn't … but it's common enough to garner its own spycraft label: LOVEINT."
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The LOVEINT scandals never seem to come into play when officials discuss "abuse" either, despite the fact it was clearly wilful. One reason might be that, like many other words, the NSA has a different definition of "abuse" than most people. After LOVEINT was brought up to Director of National Intelligence general counsel Robert Litt on a conference call with reporters, he replied:
I'm using abuse in a slightly more limited term. I'm not talking about the LOVEINT kind of thing, but people using surveillance for political purposes or to spy on Americans more generally or anything like that, as opposed to individual people screwing up.
Apparently to qualify as "abuse", the surveillance has to be on a massive scale, wilful, in bad faith, hidden from the Fisa court, and it has to about political views. Spying on loved ones or unauthorized spying on criminal behavior does not count.
Of course, if the NSA was spying on Americans for political purposes, we would likely never find out unless someone leaked it. The fact that the Fisa court ruled some NSA surveillance unconstitutional was kept secret from the American public for years after it happened, and that was behavior that was self-reported. Even many the LOVEINT issues weren't found until the perpetrators admitted it.
Even the chief Fisa court judge, Reggie Walton, admitted the court is severely limited in the oversight it could provide, telling the Washington Post:
The Fisc is forced to rely upon the accuracy of the information that is provided to the court. The Fisc does not have the capacity to investigate issues of noncompliance.
With all that said, it's unclear why we're quibbling over whether or not the government truly abused the data it has. The programs themselves are an abuse. A primary reason the founding fathers declared independence from the British was in protest of "general warrants" – the idea that the police could seize everything in a given neighborhood, only to go through it afterwards and find the criminal.
The Fourth Amendment requires particularized, individual court orders, and as long as the NSA is collecting such a vast database on every innocent person in the United States, and then searching it at their own discretion, they are abusing our constitution.
We don't let police listen to our phone conversations or search our houses at will as long as the power "isn't abused". Why should we wait until the NSA is blackmailing politicians to stop them from doing the same thing with our private phone and internet metadata?