Singularity Law

The Information Technology Law Blog and Podcast by Professor Michael Scott

Pervasive Eavesdropping, Where Do We Go From Here?

The revelations from the Snowden documents show an NSA that has defied Congress, defied the FISA Court and defied the Constitution in spying on American citizens. Yet despite these revelations, that the NSA no longer even takes the trouble to deny, Congress and the President have done nothing to rein in the agency.

Reform is possible. There is talk about tightening up the laws. But no one want to do anything that could be viewed as hobbling our intelligence agencies. No one wants to support a law that might allow a terrorist to go about his business undetected. So, whatever concerns Congress may have over the NSA’s conduct, they don’t want to be viewed as doing anything that would weaken our spy agencies in their “war against terrorism.”

Is there a “happy medium” that can be achieved? Bruce Schneier, renown security expert, believes there is. In a recently article on, Schneier offered the following:

Any solution we devise will make the NSA less efficient at its eavesdropping job. That’s a trade-off we should be willing to make, just as we accept reduced police efficiency caused by requiring warrants for searches and warning suspects that they have the right to an attorney before answering police questions. We do this because we realize that a too-powerful police force is itself a danger, and we need to balance our need for public safety with our aversion of a police state.

The same reasoning needs to apply to the NSA. We want it to eavesdrop on our enemies, but it needs to do so in a way that doesn’t trample on the constitutional rights of Americans, or fundamentally jeopardize their privacy or security. This means that sometimes the NSA won’t get to eavesdrop, just as the protections we put in place to restrain police sometimes result in a criminal getting away. This is a trade-off we need to make willingly and openly, because overall we are safer that way. . . .

Our society can handle the occasional terrorist act; we’re resilient, and — if we decided to act that way — indomitable. But a government agency that is above the law… it’s hard to see how America and its freedoms can survive that.

Do you agree?

1 Comment so far

  1. October 22nd, 2013

    | 3:13 pm

    There are several bills that are trying to get to committee for discussion. The best one I’ve seen so far is one proposed by senators Ron Wyden-Oregon (Democrat), Mark Udall – Colorado (D), Richard Blumenthal – Connecticut (D), and Rand Paul – Kentucky (R). The Intelligence Oversight and Surveillance Reform Act – Even then, though, you need the bill, but you need someone to “Champion” the bill. Ted Cruz gets vilified for his strategy on the Affordable Care Act, but the truth is, we need a ‘Ted Cruz’ for this issue. Either one needs to step up, or we need to elect one that will.

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