As my colleagues Greg McNeal and Jennifer Granick have both noted, the NSA's program to collect vast amounts of data from the phones of Americans has been ruled to be illegal. Illegal pending all of the usual stays, appeals and shouting matches that provide a living for lawyers of course.
As Greg says:
A Federal District Court Judge in the District of Columbia ruled in favor of plaintiffs seeking to enjoin the NSA’s bulk metadata collection program finding that their claim had a substantial likelihood of succeeding in showing that their Fourth Amendment rights were violated. However given the “significant national security interests at stake” and the “novelty of the constitutional issues” in the case, the judge stayed his order pending appeal.
In the wake of today’s tremendously important ruling by the District Court for the District of Columbia that bulk collection of telephone metadata violates the Fourth Amendment, it is more important than ever that Congress end this misuse of section 215 of the USA PATRIOT Act. However, Deputy Attorney General James Cole testified earlier this week before the Senate Judiciary Committee that the NSA might continue its bulk collection of nearly all domestic phone call records, even if the USA FREEDOM ACT passes into law.
And part of my job here at Forbes is to talk about the European end of things. And this ruling makes absolutely no dang difference whatsoever to whatever it is that the NSA does over here. Or indeed, one iota's worth of difference to what the NSA does anywhere outside the US and to non-US citizens. This is a ruling that applies to you 300 million Americans and not to the 6.7 billion of the rest of us.
Not that this should really be a surprise of course. The constitutional protections in the Bill of Rights apply to American citizens and residents of that country. There's no reason at all why they should apply to an Englishman 5,000 miles away. The NSA is entirely free, under American law at least, to tap my phone all it wants (and a very boring exercise it will find that to be).
Nevertheless, even as a foreigner, I welcome the court decision. On the same basis that when this story first broke those months ago I made the distinction between domestic and foreign spying. The very reason that you have the NSA is to keep tabs on the foreigners who are or might become the enemies of the US. That's the whole point and purpose of having the agency. I did make the distinction that the NSA (or any other US governmental agency) spying upon US citizens was an abomination. For the government is, at heart, hired by us to keep an eye on them. In this case "us" are the US citizens paying for the NSA and the "them" includes me as a foreigner living in a foreign land. It doesn't bother me at all that the NSA might be keeping tabs on me here (not that I think they care about me one way or the other) for the spies are not the same people as the government over the land that I am in. It's that combination that is the thing really to be undesired: or at least I maintain that that's the important thing.
Spying on foreigners is just fine, it's what the spy agency is there for. Spying domestically is emphatically not. And you Americans, you luckily have that Fourth Amendment that might make that spying on you stop.
