NSA Spying: An Interview with Law Professor Tung Yin

Tung Yin is a law professor at Lewis & Clark Law School in Portland, Oregon.

Lewis & Clark law professor, Tung Yin, recently spoke to computer and mobile phone monitoring software company, Mobistealth, about the ubiquitousness of the NSA in our lives and what, if anything, we can do about it. Yin specializes in national security law, criminal procedure, terrorism and federal criminal law. His work has been featured on national television and The Washington Post. The following are excerpts from his interview:

Mobistealth: For the first question, could you please tell me your perspective on the NSA in terms of cell phone tracking?

Tung Yin: Well, this is part of a much bigger picture of everything we are starting to find out about what the NSA has been surveying. There’s the cell phone tracking, there’s the emails, and now we’re finding out that the NSA has actually infiltrated Google and Yahoo as well. So this is one part of it. All of this information gathering pertains mostly to Americans, but also, we’re finding out, non-Americans as well. Some of it is apparently covered by court warrants, that is there are courts that have given approval for some of the surveillance, in other instances the government is claiming authority without court approval, raising a lot of legal and policy questions.

Mobistealth: Do you believe that Section 2:15 of the Patriot Act is a justifiable defense? It’s been used by the NSA a couple of times.

Tung Yin: Parts of the Patriot Act, I think, make sense because the old law was more appropriate in the mid-20th century, not applicable for cell phones in the 21st century. And there are parts of the Patriot Act that make it easier for the government to get and to share what we call foreign intelligence information and this is a lot of what the NSA is going after.

The standard that the police have to meet is what we call probable cause. It doesn’t require proof beyond a reasonable doubt as in the criminal trial standard. You do not have to prove a person is committing a crime with that level of certainty. You just have to have a good basis for believing it. Then the judge will issue a search warrant and that allows you to do what would otherwise be a violation of fourth amendment rights against illegal searches.

The Foreign Intelligence Surveillance Act of 1978 is not about gathering evidence of criminal activity, instead it’s about gathering foreign intelligence, which is useful for the government in terms of diplomacy and so on. But you still have to have a warrant. At least if you’re talking about Americans, you have to show probable cause that the person is an agent of a foreign power, that they’re somehow working for either a foreign government or foreign organization, including a foreign terrorist organization.

Now I could say it’s a little bit easier for the government in some ways. They don’t have to show that the target has committed a crime. They just have to show that the target is working for a foreign source. The Patriot Act made it easier to get that kind of warrant and for foreign intelligence analysts to share subsequent information with criminal investigators. Before 9/11 and the Patriot Act, it was harder to do that. One of the concerns that some civil libertarians have is that the government is trying to gather information for prosecution by obtaining foreign intelligence warrants. When people are complaining about the Patriot Act and whether it’s to blame and so on, that’s the aspect that relates to what the NSA is doing.

Mobistealth: LOVEINT is the code that’s used for intelligence that’s gathered on an NSA employee’s ex spouse or current spouse, or significant other. Do you think that average people can actually take any form of action against the government or the NSA?