A Washington Post story on the newest revelations from the former contractor’s cache of secret NSA documents reports “a senior manager for the program compares it to a time machine — one that can replay the voices from any call without requiring that a person be identified in advance for surveillance.”
Not only can the federal government listen and watch every move of every person anytime they choose, but they have the ability to store the sounds and images and review them at some future date.
There’s more than just a Fourth Amendment problem with such a scheme.
In a statement to the Washington Post in 2012, Robert Litt, general counsel in the Office of the Director of National Intelligence, complained that the former framework governing NSA surveillance was “very limiting.”
“On Day One, you may look at something and think that it has nothing to do with terrorism. Then six months later, all of a sudden, it becomes relevant,” Litt lamented.
This concept is undeniably violative of the Constitution’s mandate that “no ... ex post facto law shall be passed.” If the monitored behavior is legal when the record of it is made, then the person committing the act may not then be subject to prosecution for the same if the act is subsequently outlawed. Or, to use Litt’s words, if “all of a sudden, it becomes relevant.”
Alexander Hamilton warned against this type of mercurial legislating: "The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny.”
This is no theoretical argument, now, however, in light of the disclosures concerning the extraordinary recording and reviewing capacity of the NSA. The federal government can literally record every word and although something said might not be illegal now, if in some future day the message violates some new law, the government could retrieve evidence of the “crime” and punish the accused.
Curiously, the voice recording program described in the Snowden documents and described in the Post story was already functioning when Litt made his statement two years ago. As the Post reports:
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