Civil Liberties

NSA Hammered by Unwelcome Headlines, Even With a Small Courtroom Win

Chances are, the professional snoops are pining for the quieter old days.


For a secretive federal bureaucracy once jokingly nicknamed "no such agency," the National Security Agency (NSA) made an awful lot of headlines this week. Chances are, the professional snoops are pining for the quieter old days.

Today, NSA chief Adm. Michael Rogers (pictured) found himself defending his agency's practice of gathering images of people's faces from around the world for use in a facial recognition database to match against pictures of suspected terrorists. This followed revelations in the New York Times about the program, which reportedly relies on intercepting emails, text messages, social media, videoconferences and other communications.

"We do not do this in some unilateral basis against U.S. citizens," Rogers told a Bloomberg cybersecurity conference. "We have very specific restrictions when it comes to U.S. persons."

Rogers went on to insist that his agency remains within legal limits in its activities.

That may not be as reassuring as Rogers believes, both to people outside the United States and to those within its borders who just don't want their communications tapped. Not everybody finds the snoops' assurances of discretion completely convincing. As Reason science columnist Ron Bailey wrote, "Many Americans do not count on the permanent good will of the minions of the domestic surveillance state."

A reminder that a government practice's legality doesn't guarantee its acceptability surfaced in a federal judge's ruling about NSA surveillance on Tuesday.

In Smith v. Obama, Idaho resident Anna J. Smith challenged NSA interception of cellphone communications. She claimed that, under the Fourth Amendment, a citizen cannot be searched in violation of reasonable expectation of privacy unless a judge has found there is probable cause to believe a crime is being committed.

U.S. District Judge Lynn Winmill reluctantly ruled that binding precedent permits the NSA's collection of cellphone data, based on a Ninth Circuit decision that "'there is no Fourth Amendment expectation of privacy' in data that includes the number dialed along with the length and time of the call."

But Winmill also pointed to a contrary decision from Washington, D.C., on NSA data-gathering in the case of Klayman v. Obama in which Judge Richard Leon found a likely Fourth Amendment violation.

"Judge Leon's decision should serve as a template for a Supreme Court opinion. And it might yet," wrote Winmill.

Smith plans to appeal, apparently with the best wishes of the judge who dismissed her case.

Rogers also may have felt a chill blowing his way from Germany, where officials plan to investigate the alleged monitoring of Chancellor Angela Merkel's (pictured) cellphone by the NSA. Documents released by Edward Snowden revealed such surveillance of dozens of high-ranking international officials (which should come as a surprise to exactly nobody).

The NSA is supposed to spy on foreign officials, who presumably return the favor to the best of their abilities (Germany certainly does). But matters grow extremely awkward when it is publicly revealed to be doing so.

And "awkward" is the operative word for any spy agency that finds itself swirling through the news cycle, no matter how or why it makes the headlines.