Over the weekend, the New York Times' public editor, Margaret Sullivan, published a piece investigating the Times' thirteen month delay in the publication of a bombshell report on the Bush Administration's domestic mass surveillance program back in 2004 and 2005. Sullivan's revisitation of the issue in light of what we've learned since this summer about the NSA was a great public service.

We now know that the government lied to the New York Times about the legality of its spying to delay the publication of the story that would eventually win the Pulitzer Prize, hiding a tremendous fight inside the government about the legality of the spying.  The report also contains an important new admission from former NSA chief—and its current public booster—General Michael Hayden, that "he can’t prove any harm to national security from the publication of the eavesdropping stories — then or now."  We hope Mr. Hayden will now revise the many hyperbolic statements he has made to the contrary.

Yet as the folks who, along with the ACLU, have been leading the lawsuits against NSA spying since early 2006, we need to point out a big problem with the New York Times' characterization of the current mass spying.

The piece quotes Eric Lichtblau as saying that, as a result of the revelations, Congress made "all this stuff" legal, then adds: "There may be public outrage over the latest wave of surveillance revelations, but the government has a helpful defense: Hey, it’s legal."

Not so.  The government's claims of "legality" are wrong, have been strongly criticized by national security law professors, and are currently being challenged in court by EFF, ACLU, and EPIC, among others. The Times disserves its audience by repeating them as if they were true.

In fact, the ACLU has a hearing in New York this Friday, November 22, in its key challenge to one of those “legal” claims: that the NSA’s indiscriminately collecting telephone records is “legal” under a convoluted interpretation of the section 215 of the 2001 Patriot Act that mentions neither telephone records nor the NSA. To try to make it fit, the government attempts to redefine the limits on production of "relevant" things to allow the collection of massive amounts of "irrelevant" information. In other words, by a plain reading of the statute, what the NSA is currently doing in collecting massive amounts of telephone records on an ongoing basis is not legal.

And that’s not even addressing the Fourth Amendment problems with mass, suspicionless seizure of records of our calls with doctors, business associates, churches, friends and lovers, records that can create an extremely intimate portrait of our lives and political activities. The government's claim that the Fourth Amendment is not triggered by the ongoing collection of this sensitive information in an untargeted mass is far from settled. 

The Fourth Amendment isn’t even the only amendment the NSA is violating. EFF focused on the First Amendment in our motion for partial summary judgment against the mass telephone records collection program we filed in California last Wednesday. The motion features declarations from 22 associations, from the California Gun Owners to Patient Privacy Rights to People for the American Way to the First Unitarian Church of Los Angeles, attesting to the First Amendment chilling effect from the collection of telephone records. 

Also not “legal” is the mass collection of communications, including content, that the government claims is justified by section 702 of the FISA Amendments Act. That’s the law Lichtblau references, passed in 2008 after the Times revelations.  Section 702 also doesn’t say that mass, untargeted surveillance of Americans is allowed. To the contrary, 702 expressly forbids the government from intentionally acquiring any communications that are purely domestic. The NSA's "upstream" access, tapping into the domestic fiber optic cables of AT&T and other carriers that carry the content of our emails, web searches, social networking posts and many of our phone calls, plainly violates section 702 and also violates the Constitution.  EFF will be presenting these arguments before an open, adversarial public federal court starting in the spring.  

These points were made well by former EFF attorney Jennifer Granick of Stanford and Professor Christopher Sprigman of the University of Virgnia in a piece in the Times in June, so it’s surprising that the Times simply repeated the government’s conclusions without question.

In short, nowhere in federal law, before or after the Times story in 2005, has Congress ever openly authorized the mass spying on Americans that is taking place. EFF is still fighting to force the release of the key FISA Court rulings, so we don't know the specifics, but the fact that the government has convinced the secret, non-adversarial Foreign Intelligence Surveillance Court to sign off, apparently based on contorted statutory interpretation, doesn't change that. These questions need to be presented in the public courts where rule of law and due process rules are clear.

The piece admits that the Times was taken in by claims of "legality" in 2004.  It shouldn't get fooled again by government claims of “legality” of mass surveillance.