Electronic surveillance

State sanctioned secrecy: NSA's criminality shield

Last week, the U.S. Court of Appeals for the 9th Circuit ruled that the National Security Agency (NSA) telephone metadata program first exposed in June 2013 by whistleblower Edward Snowden “…may have violated the Fourth Amendment and did violate the Foreign Intelligence Surveillance Act (“FISA”) when it collected the telephony metadata of millions of Americans…” The program was repeatedly reauthorized by Congress before finally (allegedly) being shelved in 2019, despite a Trump administration effort to revive legal authority for it. Snowden recognized the program’s inherent criminality and unconstitutional character, which is precisely why he exposed it — and why all pending federal charges against him should be dismissed with prejudice.

Unfortunately, NSA still has a critical legal tool to hide other criminal or unconstitutional acts: the six-decade old National Security Agency (NSA) Act of 1959 (P. L. 86-36).

Enacted at the height of the Cold War, the NSA Act gives the agency radically sweeping powers to withhold any information from public disclosure. Specifically, Section 6 of the Act states “…nothing in this Act or any other law…shall be construed to require the disclosure of the organization or any function of the National Security Agency, or any information with respect to the activities thereof, or of the names, titles, salaries, or number of the persons employed by such agency.”