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Is NSA surveillance unconstitutional?
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Jun 5, 2025
Jon Roland at the Austin Constitution Meetup June 18, 2013, discusses the constitutional issues with recently re-revealed activity of the NSA and other government agencies.
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0:02
john rollins at the austin constitution
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meetup
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june 18 2013.
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we're resuming the discussion with
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a discussion on
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nsa surveillance
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and the issues that it raises
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first of all
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on the question of the
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leaking of
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information about it
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it is not clear to me at this time
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whether the information that has been
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leaked
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is really
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new information
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uh you know whether it's really a secret
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it has not been a secret for me
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now i'd have to admit i haven't heard
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the name prism
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as a project name before
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but other than that everything the nsa
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has been doing
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he has been well known well documented
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much discussed
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he has been going it is or his
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predecessor's work
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has been going on since world war ii
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without interruption
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essentially
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they've been scarfing up
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all the communications of every kind
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whatsoever everywhere on earth that they
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can
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if they can do it they record it
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and
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that's the fact that
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technology now makes it possible to
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literally record every telephone
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conversation
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every email every browser
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web browser visit
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everything at all that happens
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electronically
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for all we know they're even tapping
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into
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conversations between children
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in
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talking over
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between cans
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connected by
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strains
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so
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the question is
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is nsa surveillance unconstitutional
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now a lot of people are upset about it
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in fact i'm one of them
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but i have but it's not because it's
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something new to me
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it's been
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an open secret their earlier names for
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the activities include echelon
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project echelon that is
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it's been well known that
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where the government has a rule that
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they're not supposed to surveil uh u.s
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citizens
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they've been having our allies do it
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and we could then we then we get their
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information from them
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and we do the same thing for them and
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give them the information
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so
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in a world of multiple nations many of
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whom are allied to us
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we can always find a way
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to surveil anyone anywhere
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by some combination of
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national efforts or even private efforts
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after all you can have
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the credit reporting agencies
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are
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doing the same kind of work
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and reporting their
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findings to the government
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and well the government always said well
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we're not doing that
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even if the law says they can't do that
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it doesn't prevent a private
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organization from doing it or from the
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government from the government from
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getting the results
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so they can contract all this stuff out
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or even just have it given to them if
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they don't want to pay for it
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so um
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the question is
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what are the constitutional issues
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involved in this
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and from the discussions that
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we hear
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it doesn't seem that people are clear on
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some of these concepts
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what it comes down to is is there an
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expectation of privacy for phone calls
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emails etc
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maybe not
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depends on the technology of how other
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conductors
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there is a privacy
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in sealed mail
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but not in postcards
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if you mail a postcard anybody can read
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it
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that the head handles it now you can say
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well only postmen are supposed to handle
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it and you're not supposed to let
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anybody else handle it but the fact is
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that
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nail is left lying around all the time
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in post boxes on the street and so forth
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so
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realistically
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uh you could say there's privacy in
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not opening people's mail but not in
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uh if it's if it's already open
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wiretapping needed warrants when
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connections were two-way and expected to
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be private
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it used to be that you conducted a phone
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call and you did have an expectation of
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privacy
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just because of the nature of the
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technology
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maybe
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the
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cell phone operator could listen in
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but chances are it wasn't practical for
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anyone else to do so
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without
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being intrusive in
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a clear-cut way
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but when packets are broadcast and
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reassembled who's the owner
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when it goes out over the airwaves or
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over the internet trunk lines
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who is actually an owner once it's
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released into the wild as it were
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and i would say that
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if we expect
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any kind of privacy
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for our electronic communications we're
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going to have to encrypt them
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and only if we encrypt them can we
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really expect fourth amendment
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protections
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uh
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we need a new standard
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it's not enough to protect against
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intrusion
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into privacy zones
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to prevent excessive surveillance we
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need a new principle of restraint
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an expectation of non-surveillance
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which would extend into public spaces
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and covers things like visual
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recognition
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it is not clear that this standard can
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be made judicial
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it may be amenable only to the
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legislation
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and
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lots of luck with
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congress trying to keep up with
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technological developments in the field
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if not enacted
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public surveillance may overwhelm
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protection in private zones
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the problem basically comes comes down
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to this
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we have to go out sometime
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everything we do in the open is
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scrutinized we may never be able to make
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it to a private space
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there may be nowhere to go or that we
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can get you before
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they interfere with our
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our
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personal activities
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or if there are any more zones of
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privacy to be able to take any refuge
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there
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if you're
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only private in a
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place where you can't make a living
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then
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sooner or later
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you have to go out and they can get you
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so
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your home your
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your personal your effects your
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uh premises
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are a wonderful concept
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but the home the home is not the castle
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it once was
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due to technological developments
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now
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if you uh
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type on the wrong kind of keyboard
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the
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emissions from rf emissions from your
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keyboard
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may be readable
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by someone next door
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now if you conduct if you engage in a
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conversation
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a an infrared
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beam
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can read the vibration of your windows
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in order to
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determine what you're saying
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if you have smells coming out of your
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house
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that can be detectable by a machine or
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even by dog
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it may be allowed
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to be
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you know the basis for
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a
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probable cause affidavit
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so
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or even just excessive use of
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electricity
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which might be suspected as being used
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to
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grow
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the wrong kind of plants
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so
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there's all sorts of activities that
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extend beyond the zone of privacy that
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you think you may have
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and that
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will are going to need to be addressed
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if we are to achieve a measure of
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privacy
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that most of us
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would be comfortable with
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