Last weekend's bombshell report on AT&T's enthusiastic cooperation with NSA mass surveillance revealed that the NSA categorized many of its most egregious spying programs as "Partner [AT&T] Controlled."
We don't know for sure why they would distinguish between "partner controlled" spying and "NSA controlled" spying, but we do know that the NSA is obsessed with constructing tortured legal justifications for its spying, and the footnote for the "partner controlled" chart says that some operations were partner controlled "because of partner relations and legal authorities." (Note that the NSA uses "legal authority" and "legal theory" interchangably)
To EFF executive director Cindy Cohn, this implies that the NSA may think that it can escape liability for illegal spying by asking someone else to do its dirty work. But as Cindy writes, this holds no legal water:
First some law: the Fourth Amendment applies whenever a "private party acts as an 'instrument or agent' of the government." This rule is clear. In the Ninth Circuit, where our Jewel v. NSA case against mass spying is pending, it has been held to apply when an employee opens someone's package being shipped in order to obtain a DEA reward (US v. Walther), when a hotel employee conducts a search while the police watch (US v. Reed), and when an airline conducts a search under a program designed by the FAA (United States v. Davis), among others.
The concept behind this rule is straightforward: the government cannot simply outsource its seizures and searches to a private party and thereby avoid protecting our constitutional rights. It seems that the NSA may have been trying to do just that. But it won't work.
Saturday's stories about AT&T's cozy relationship with the NSA confirm that, for purposes of tapping into the Internet backbone, AT&T was acting as the agent of the government. For its part, AT&T denied that it engaged in any surveillance voluntarily, noting: "We do not voluntarily provide information to any investigating authorities other than if a person's life is in danger and time is of the essence." So AT&T is certainly not claiming that it acted on its own agenda.