When spies don’t pay attention

There are several disturbing aspects to the revelations that the National Security Agency went well beyond the generous legal limits set by Congress to intercept Americans’ private phone calls and e-mail messages.

The New York Times, which broke the story, said its sources described the practice as "significant and systemic" and possibly inadvertent. And it’s unclear whether the agency actually listened to or read the calls and messages it swept up.

This raises the possibility that NSA ignored the privacy safeguards that are supposed to be built into the system, or found itself technically unable to abide by them or that its technology has grown out of control and the agency didn’t know what it was vacuuming up.

This loss of privacy, whether intentional or not, is one of the legacies of President Bush’s assertion that his wartime powers placed him above the law. In this case, he instructed the NSA to go ahead and eavesdrop without bothering to obtain warrants from a secret court as required under the 1978 Foreign Intelligence Surveillance Act.

The program was hugely controversial when its existence was revealed in 2005. In 2008, Congress rewrote FISA to make NSA’s responsibilities for the privacy protection of domestic communications clearer while still giving it leeway to listen to communications of foreign origin.

To the government’s credit, the "over-collection" of domestic communications came to light in a required twice-annual Justice department review of NSA’s eavesdropping practices.

The Justice department says that the problems with the NSA surveillance program have been resolved and new safeguards put in place. We seem to have had these reassurances before and once again the Senate Intelligence Committee is promising to look into it.

Maybe the volume and complexity of modern communications is such that there are not truly adequate privacy protections and that our society has to realize that perhaps there is no such thing as electronic privacy. The popularity of Facebook and YouTube suggest that perhaps a significant portion of the population is OK with that.