New NSA Warrantless Tactics Reveal Little Room For Presumption Of Innocence

The Guardian released new details about the National Security Agency’s spying practices, which reveals how analysts can store vast sums of data without a warrant. Specifically, if the NSA “inadvertently” stumbles upon anything related to a potential crime, it can store the data for later investigations.

Quite reasonably, the Supreme Court has declared that law enforcement can charge citizens with a crime if it’s being conducted in “plain sight“–e.g. if cops see pot sitting in the passenger seat of a car during a traffic stop.┬áThat is, the presumption of innocence doesn’t apply to if police inadvertent witness a crime. Unfortunately, the scope of the presumption of innocence gets tinier as the government’s eyes get bigger.

According to the documents, the NSA is required to “minimize” any surveillance of U.S. citizens, which is beyond the jurisdiction of the foreign-enemy-facing agency. If communication between telephone records or internet addresses appear to be wholly within the United States or concerning U.S. citizens, data will be “promptly destroyed.”

However, phone records and internet data can be kept if the communication

  • is “reasonably believed to contain evidence of a crime that has been, is being, or is about to be committed”
  • contains information “necessary to understand or assess vulnerabilities”
  • “is reasonably believed to contain significant foreign intelligence information”

In other words, if the NSA stumbles upon evidence that could stop a crime, they should keep it. But, applying this logic to digital information is quite different, because it allows police the ability to put eyes everyone. Indeed a ruling in the Ninth Circuit Court of Appeals warned that extending plain sight to digital evidence, “creates a serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant”.

Of course, the legal justification for the NSA spying is all top-secret, so we have no idea what specific precedent they’re using to justify the warrantless exceptions. Details aside, the lesson is clear: there are consequences to monitoring data broadly, even when if its well-intentioned. How we will square new technologies with the constitution is something we’ll have to grapple with as a society–if we could ever see the legal justifications, that is.