If I was an American, I’d thank God I wasn’t British
President Obama has delivered his response to the independent review of NSA surveillance. It has been met with cautious approval. It should have been met with downright dismay.
At the heart of the issue is the NSA’s mass indiscriminate collection of telephone metadata. That should be prevented by the Fourth Amendment to the constitution, which prohibits ‘unreasonable search and seizure of personal property’. If Obama doesn’t put an end to this — and he hasn’t — then everything else he says or does is just, as the Americans say, lipstick on a pig.
Let’s look at the Fourth and the collection of metadata.
Is my metadata my ‘personal property’? Of course it is. I create it; therefore I own it. I have automatic copyright over it.
Is the NSA action ‘unreasonable‘? Of course it is. A reasoned search and seizure would involve judicial oversight; that is, a warrant for each individual action.
Does it involve ‘seizure‘? Well, obviously.
Does it involve ‘search‘? Ah, well…
This is the crux. It’s indiscriminate collection, so they’re not searching. And just storing the data doesn’t involve searching it. And the NSA says it always gets a warrant or at least judicial approval for any search of the collected data.
So the NSA’s description of its action — given tacit approval by Obama’s failure to disapprove — is that the war against terror is reasonable, and therefore the seizure of what isn’t personal data (the organization argues that it belongs to the telcos) is reasonable, and that searches of the seized data is only done within reason.
It’s semantics that flies in the face of the intention of the Fourth Amendment. And it’s an interesting and big discussion.
I’m British, so my opinion is irrelevant to the Americans. And if I was American I would be very glad that I wasn’t British. Because at least the Americans are having this discussion. In Britain we are simply told that GCHQ obeys the law. That is more than questionable; but we are not being allowed to question it. And even when GCHQ is within the law, it is a pernicious law that isn’t understood by the people and needs to be repealed. But arrogant, disingenuous politicians, led by Cameron and Hague, simply dismiss or ignore all attempts at public disclosure.
GCHQ has access to NSA metadata on UK citizens. Hague says this is legal. If it were legal, why did he want to change the existing law that makes it legal and introduce the Communications Act to make it legal?