What D.C. Doesn't Get About NSA Surveillance

Watching conventional wisdom form in Washington can be appalling. The emerging consensus on surveillance this past week has D.C.'s pundit class saying that privacy violations are a small price to pay for keeping Americans safe.

But conventional wisdom is wrong. Trampling over our most essential rights is never OK. All of us should be free to connect and communicate without fear of government intimidation.

Too many of Washington's talking heads and politicos don't seem to get this. Their profound misreading of the Constitution has put our democracy on a perilous path toward a surveillance state.

There's some good news, too: A growing majority of Americans is rejecting the Beltway's spin on spying. More and more people are siding with a coalition of free speech, open government and privacy advocates that is calling on Washington to be more accountable to the public, and more respectful of our rights.

Here's a five-point primer to set the record straight.

1. How Big Is This?

On June 7, Guardian columnist Glenn Greenwald revealed a secret court order that the National Security Agency and other government intelligence agencies are using to vacuum up "metadata" on all telephone calls "between the United States and abroad" or "wholly within the United States."

While the initial order was targeted at Verizon customers, the Wall Street Journal subsequently reported that other telecommunications giants -- including AT&T and Sprint Nextel -- are participating in the program.

A few days later, the Guardian and the Washington Post exposed the NSA's PRISM program, which gives the government access to all kinds of online user data for overseas communications, including email, chat services, videos, photos, stored data, file transfers, video conferences and logins.

All told the dragnet sweeps in the communications of hundreds of millions of Americans and many more people living outside the United States. It's huge.

2. Why Isn't This Illegal?

There's a disconnect between Washington officials, who by and large think mass data collection is necessary, and people living outside D.C., who are troubled by the notion that our communications are an open book. Hundreds of thousands have signed petitions and sent letters demanding that Congress reveal the full extent of the spying programs.

Washington claims that its authority to surveil us stems from the Patriot Act and the Foreign Intelligence Surveillance Act (FISA). The PATRIOT Act gives the government broad discretion to obtain a secret court order to collect almost any data deemed relevant to an investigation.

FISA allows the government to monitor the contents of foreign communications traffic -- without showing cause for targeting any particular individual.

Rights groups contend the White House is misinterpreting the legislative language to intrude into Americans' private lives. On Tuesday, the American Civil Liberties Union sued the Obama administration, stating that the secret program violates the Fourth Amendment -- which protects Americans against search and seizure of property without warrant or probable cause.

3. Where Does Obama Stand? 

Few would have guessed in 2008 that President Obama would have a blind spot when it comes to civil liberties. Once a constitutional law scholar, his familiarity with the First and Fourth Amendments runs deep. And before becoming Commander-in-Chief he was outspoken on their behalf.

In 2005, Sen. Obama said the Patriot Act "seriously jeopardizes the rights of all Americans and the ideals America stands for." In 2007, candidate Obama said that as president he would ensure there were "no more national security letters to spy on citizens who are not suspected of a crime."

Fast forward to last week, when President Obama claimed that such wholesale spying is a necessary evil. "You can't have 100 percent security and also then have 100 percent privacy," he told reporters.

Obama's reversal may have real political consequences. A poll released on Thursday found that two-thirds of Americans want a review of the NSA's role in mass spying, and 56% find current congressional oversight insufficient. A Gallup poll found more Americans disapprove (53 percent) than approve (37 percent) of the government program to "compile telephone call logs and Internet communications" of Americans.

4. Why Does This Matter?
The First and Fourth Amendments were enshrined in our Constitution to shield people from government abuses of power. But Washington is doing a poor job of honoring these founding principles, instead writing legislation that lets intelligence agencies dance around our rights.

In its suit against the federal government, the ACLU says the NSA program "is akin to snatching every American's address book -- with annotations detailing whom we spoke to, when we talked, for how long and from where."

The ACLU complaint also contends that the surveillance will silence whistleblowers and allow government to retreat further behind a veil of secrecy.

 For millions of Americans, the dragnet could cast a chill on their use of popular services like Facebook, Google, Yahoo and YouTube. The lack of free-speech protections on privately owned Internet platforms used by more than a billion people is the First Amendment challenge of our time.

5. What Can I Do About It?  

On Tuesday, a coalition of privacy, Internet freedom, and free speech advocates launched StopWatching.us to halt the spying and clarify the laws that are supposed to keep our private lives private. Close to 140,000 people have already taken action.

The coalition has also called on Congress to launch a special investigation that would reveal the full extent of the NSA's spying programs.

The investigation would be modeled after the Church Committee, which Congress created in the 1970s to investigate illegal intelligence gathering by the CIA, FBI and NSA.

 Another group, Restore the Fourth, launched on Friday. The group is pushing the U.S. government to respect Americans' Fourth Amendment rights. Activists associated with both of these campaigns are planning a number of actions for July 4 -- including street protests and congressional call-ins.

Unless Washington stops shredding our First and Fourth Amendment rights, this dissent will grow stronger, larger and louder every day.