It took a while for the first judicial ruling to label the NSA’s massive collection of phone “metadata” (and then some) a probable violation of the Fourth Amendment (that’s the one barring unreasonable searches and seizures of the American peoples’ “persons, houses, papers and effects”.) but it has come at last.
On its heels, President Obama has now proposed changes in how the metadata program operates. Whether he shares their concerns or not, the President understandably wants to head off criticism from civil libertarians while (as he sees it) protecting national security.
But too much about his NSA ‘reforms’ is too vague for those reforms to be evaluated yet. The President clearly doesn’t want to stop bulk (metadata) collection—he merely promises to outsource the data-holding function to a third party to be determined (or have it held by the telecoms, not an idea anyone much likes). But the problem remains the metadata collection per se. And if the data is gathered anyway, mightn’t it be safer with the NSA than being outsourced? Further, while the President wants FISA court approval for using this data to connect the dots, there’s no telling what legal standard will apply. It could end up being a ineffective rubber stamp kind of process, and certainly won’t be as rigorous as probable cause.
Can the Obama initiatives change the NSA’s chances in court? The December 2013 ruling by D.C. Circuit Judge Richard Leon entered uncharted territory for Fourth Amendment jurisprudence, and may not stand on review. On December 27th Judge William Pauley (Southern District, NY) reached the opposite conclusion in rejecting a suit brought by the ACLU. None of this has stopped Edward Snowden and civil liberties enthusiasts from declaring vindication for Snowden’s releases of documents that continue to detail the scope and extent of NSA data collections in the name of the war on terror. Or seemingly any other reason that suits the agency. Those documents, incidentally, are a spigot that keeps gushing: turns out the NSA also intercepts computer shipments to install backdoor monitoring devices… apparently on a targeted basis
It is very welcome that the Snowden files have given new legal life to challenges to the national security state—NSA data collection and retention in particular. It is a useful though hardly sufficient condition for individuals to challenge the NSA on Fourth Amendment grounds. As Judge Leon rightly stresses, the key to getting the NSA back on the leash is the extraordinary evolution of technology, especially communication technologies, since the Supreme Court ruled (in Smith v. Maryland) that U.S. citizens have no “reasonable expectation of privacy” in data (e.g. phone call records) that they voluntarily give to third parties (the phone company) by making calls on a company network. Judge Leon stresses the dramatic revolutions in telecom technologies since 1979 (the year of theSmith ruling) in suggesting that in 2013 even basic data of the calls we place and receive (without any conversation-content revealed) quickly expose a matrix of affiliations and interests (as Princeton’s Ed Felten argues persuasively) that infringes personal privacy when it is automatically put in the hands of the government. As indeed it is.
What the NSA does now is not just a fishing expedition, it’s a massive net over every and all fish current and future.
Without presuming to predict the outcome of this jurisprudential tug o’ war, we think Judge Leon has the better of the argument. To say the government can access one’s phone data without a warrant whenthere is a specific crime-related cause to do so (the situation in the Smith case) is a far cry from saying the government can maintain a comprehensive rolling record of all our phone contacts just in case some terror-related communication might pop up in the future. What the NSA does now is not just a fishing expedition, it’s a massive net over every and all fish current and future. While we may not have an actionable expectation of privacy in our phone numbers, we have the right to expect that our call records are not subject to state scrutiny unless there is a good, specific, judicially-approved reason for that scrutiny.
Judge Pauley says not only that the Smith standard doesn’t change just because technology does, but that the state’s post-9/11 terror concerns warrant giving it exceptional deference. This amounts to accepting, without question, the government’s assertions that it keeps our phone metadata secure. That the government wouldn’t ever delve into it without really good reasons. That the metadata held by government has in fact helped thwart terrorists (or may do so). And even—in a sweeping and absolutely unprovable hypothetical—that if they’d had this metadata pre-9/11, the World Trade Center towers might still be standing. Never mind that the 9/11 Commission (and many others who explored the pre-9/11 security limitation of U.S. government policy) made clear that failing to connect dots across law enforcement agencies was the problem. Those in the intelligence community who did tag some of the 9/11 perpetrators in advance of the attacks weren’t listened to, which in turn means that metadata can’t do anything if it doesn’t go to the right people or if the key operatives are never identified in the first place.
Judge Pauley’s limited skills in logic render his entire judgment suspect.
Let’s not forget the salient truth that state control over our phone records is the very small tip of the government’s iceberg of data about who we are, what we do, what we think, and who we network with. Snowden and others have made clear there is fairly comprehensive state monitoring of our email, web habits, and travels, all made possible by the convenient technologies we enjoy, and by the easy ability of the government to harness those same technologies for whatever purpose it chooses. There is no guarantee—none whatever—that those purposes will always be on the up-and-up. One person’s metadata- desire strictly for security purposes can as easily be another person’s data-trove for partisan politics. Whether it’s been done yet or not, the potential is blazingly obvious.
Again, Judge Pauley dismisses such broader concerns, pointing out that we all (well, some of us) give out tons of personal information through social media sites and consumer purchases, so why worry about the government taking it? Holy Mackerel! There is such a huge conceptual gulf between giving out private information in return for a consumer product or service or in a contractual arrangement for using social media, and acquiescing unknowingly (until recently) to state monitoring of our nonpublic behavior, that Judge Pauley’s limited skills in logic render his entire judgment suspect.
The technologies we use, and the government’s ability to use those in turn to keep an eye on us, are not going away. The eradication of clear boundaries of privacy will only accelerate. Just to level the playing field, we should know at the very least what the state is monitoring when we make a call or go online. There is no reason our privacy-jurisprudence and our privacy laws can’t keep pace without jeopardizing our national or personal security. Even the new Obama reforms, however they turn out as to the details, won’t meet that standard. And so the court cases should continue, if only to keep the pressure on all our elected and appointed officials.
It shouldn’t take a Snowden, who promises a boatload of new disclosures in 2014, to make this happen. That’s why Judge Leon, whether or not he prevails in this case, deserves thanks for launching the legal and political debate in the right direction.
