Last week, the Congressional Research Service released a report on the National Security Agency’s domestic spying programs. Essentially, it is a “What You Need To Know, Mr. Representative” memo, mostly a summary of issues that have already been discussed publicly at length. It is nonetheless a useful document for the public to catch up on what is known.
Packed in its 15 pages are a number of interesting datapoints, with these being the big things you should know:
1. The standard for investigation is subjective.
The report notes the authority to investigate and take someone’s domestic phone records is invoked by crossing a very low bar. Section 50 USC § 1861 (b)(2)(a) asks that an investigator submit “a statement of facts showing there are reasonable grounds to believe” an investigation is necessary. The report notes there is no statutory definition of “reasonable grounds,” though it speculates that the standard is probably less stringent than “probable cause” and may be merely a synonym for “reasonable suspicion.”
Moreover, federal statute authorizes law enforcement to obtain personal communications data if “there are reasonable grounds to believe” that data is “relevant and material to an ongoing investigation.” There’s no definition of relevancy, either. Relevancy, instead, is “generally understood” (the report’s words) to require “only that the information sought would tend to prove or disprove a fact at issue.”
In today’s surveillance world, that doesn’t serve as much of a check on government snooping. If agents believe your records of ordering pizza (or ordering pornography) may disprove or prove some fact at issue, then they’ll be sure to get those records.