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The NSA’s System of Secret Law

March 19, 2014
TBen O'Neill writes in today's Mises Daily: 
The legal story here revolves around a legal doctrine known as the “third-party doctrine,” which arose in a 1976 case called United States v Miller and a 1979 case called Smith v Maryland. These opinions gave rise to a doctrine known as the “third-party doctrine,” essentially allowing that any information communicated to a third party could be obtained by the government without a warrant, without any objection in respect of the Fourth Amendment. In the past decade, with the advent of broader surveillance methods by the US government, the doctrine has become more far-reaching, and in the case of the NSA, it has spawned an entire system of secret law, purportedly justifying mass warrantless surveillance of the population. Behind the veil of secrecy of a system of secret courts the NSA and the FISA court have gradually developed a string of legal precedents extending the Miller and Smith cases and purporting to give a legal justification to the mass collection of all metadata derived from telecommunications. All of this has taken root on the flimsy basis of these two legal decisions, which were concerned with single instances of police searches of known suspects. From this slippery slope the NSA has successfully argued its case for mass surveillance to the FISA court, without any other parties present.

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