In an exclusive interview given to the Australian media at RSA Conference this week, RSA Chairman Art Coviello said "It is against the law for the NSA to spy in the US and if they've done anything illegal, which, again, within US law, people might have commented that they have in the press, but no legal authority seems to be raising that as an issue."
It's clear that Coviello has either not kept up with what's been going on, is in denial or deliberately attempting to mislead.
Both the FISA Court and US Federal Court have ruled that the NSA has behaved improperly. It is true that specific prosecution of the NSA or its officials has not yet taken place. But there's no doubt that their actions have been ruled by courts to not be acceptable.
The NSA's activities in accessing the private data of individuals is a massive scandal that will change the way the US operates within and outside its borders. After the revelations were made public last year there have been two Federal Court rulings and a FISA Court ruling regarding those activities.
The Rulings
1. The FISA Court Ruling
The FISA court ruled that the NSA had been non-compliant in how it collected data and that they improperly permitted access to email and internet data.
2. Federal Court Ruling 1
In a ruling U.S. District Court Judge Richard Leon declared that the NSA's bulk collection of millions of Americans' telephone records likely violates the U.S. Constitution's Fourth Amendment (covering illegal search and seizures).
That ruling was specifically about the case of two men under NSA surveillance.
It's also important to note that the NSA is primarily tasked with dealing with threats emanating from outside the US but that they can carry out intelligence operations within the US.
When that ruling was made, Coviello made some strong comments regarding his views on its legality. He has even gone as far as to say that anonymity is the enemy of privacy – a view he reiterated to us during our interview.
The challenge he says is find a way for the two to pull together like opposing poles on magnets rather that pushing apart.
What's clear from these two cases is that even though no specific charges have been levelled against the NSA, the US courts have ruled the activities of the NSA in collecting data outside the scope of the law and other governing frameworks for their actions.
3. Federal Court Ruling 2
A second federal court ruling made by U.S. District Judge William Pauley said the NSA's bulk collection of phone records under Section 215 of the PATRIOT Act was legal. However, the matter is not over as it is expected to be fought out in the Supreme Court.
It might be instructive to note that when the American Civil Liberties Union sought to have a Freedom of Information request approved regarding the use of waterboarding that the CIA did not have to turn over information as the activity was deemed to be part of legitimate “intelligence methods”.