NSA

In my day job, which is basically commenting on media websites, particularly in the morning hours, I have lately been chiming in on the NSA phone data collection program, often called by its official governmentese - telephony metadata collection program. First, and least important, what is "telephony" all about? Really, they couldn't just say telephone? They had to add the -y? My comments on these sites  mostly indicate that I haven't made up my mind, which is only worth saying because I find that virtually everyone else who writes as dead certain, and I don't understand that certainty given the vagueness of the Fourth Amendment. I'm good at uncertainty. It's either one of my strong points or weak points. I'm not certain.

I've read the two recent cases, one by federal district court (first or trial level) Justice Richard Leon and the other by another district court Justice William Pauley, which were virtual polar opposites in their decisions, but frame the debate nicely for us.   I'm going to summarize these two opinions (both fairly lengthy) and leave a lot of stuff out because I don't want to bore anyone to tears, or possibly even death.

The NSA problem is one that makes strange bedfellows. This was - if it is possible you do not know - the government program has been in effect since 2006 which collects certain data about every telephone call made in the country, though (supposedly) not, as many think - the content of the calls. It came to the world's attention by the revelations of Edward Snowden, a government contractor who was alarmed at the program and felt his duty was to reveal it to the world. He fled the country (and, accepting his mindset that he is a whistleblower, he might be right. Guilty or innocent - he certainly would have spent many years in jail.  Ironically he sought protection from totalitarian countries, first China, and then Russia. It is ironic because had he done the same thing in either of these countries and was caught, he almost certainly would be dead now after a swift trial in which the outcome was certain, though possibly in Russia it would have been merely a life sentence.  Whatever people say about our country, he would not be dead here, nor would there be certainty of conviction. It is also ironic because if they are doing the same thing, and I feel it is likely they are, if not far worse, no one will likely know about.

But there are Democrats and Republican, conservatives and liberals on both sides. Libertarians are mostly on the anti-NSA side, but I lean libertarian (though a libertarian might disagree) and I am leaning more in favor of the program than against it.

First, Judge Leon's decision:

The threshold issue is whether plaintiffs have a reasonable expectation of privacy violated when the Government collects their telephone metadata along with that of millions of others without any suspicion of wrongdoing, retains it for five years, and then "queries, analyzes, and investigates that data" without judicial approval that these people be investigated.  If there is a reasonable expectation of privacy, then there has been a Fourth Amendment "search" and it will be asked whether the search is "reasonable."  

The important case to consider is Smith v. Maryland, 442 U.S. 735 (1979), which the FISC  (the specialized federal intelligence court) has said "squarely control[s]" when it comes to "[t]he production of telephone service provider metadata."  Smith basically holds that no one has any expectation of privacy in the telephony metadata that telecom companies and that therefore, the Bulk Telephony Metadata Program is not a search.

Judge Leon disagrees with the use of Smith,  because that case focused on the installation and use of a pen register, which was a device that, back in the 70s was able to give investigators the basic metadata about phone-calls.  In J. Leon's view, "the evolutions in the Government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and telecom companies" are "so thoroughly unlike those considered by the Supreme Court thirty-four years ago that" that Smith no longer applies.

First, the NSA metadata collection/analysis now "almost certainly" violates a reasonable expectation of privacy. Back in the day, the pen register considered in Smith  operated for a few days and there is no indication in Smith that the Government was going to retain those limited phone records after the case. The NSA program keeps it 5 years.

Second, if it was true that people might expect phone companies to "occasionally provide information to law enforcement" is quite different to "suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government."

Last,  "the almost-Orwellian technology"  that allows the government to do this would have been science fiction in 1979.

The date they take  - the date, time, numbers dialed, etc. is pretty much the same now as then.  But, we use phones so much more than we did - even for two people to find  one another in a public place. The information no longer reveals a few things about a person but "an entire mosaic--a vibrant and constantly updating picture of the person's life."  Do we, as some assume, accept that these cultural changes mean must accept the "'inevitable' diminution of privacy" the new technology brings  that we have a reasonable greater expectation of privacy. He thinks the latter. Note that this is the nub of Judge Leon's opinion.   

So, forget the Smith pen register. It is so different from the NSA program it can't be used to determine if we have a reasonable expectation of privacy from the government, with no suspicion of wrongdoing,  collects and stores for five years in order to analyze it.

The government claims that the program helps "identifying unknown terrorist operatives and preventing terrorist attacks.".   Judge Leon thinks it is relevant that it also helps to do so faster than other methods they might use.   But, he believes the three instances the government cites no instance of the program stopping "an imminent attack," or of it being effective in any time sensitive way. He concludes it is really useful in this way.

He acknowledges that other judges have concluded differently. He relies on a Supreme Court cases which essentially held that the degree of privacy which existed when the Fourth Amendment was adopted in 1791 must be preserved. The Supreme Court noted in the 1960s that , the basic purpose of the Fourth Amendment was to "safeguard the privacy and security of individuals against arbitrary invasions by government officials."  Nothing could be more indiscriminate and arbitrary an invasion than this program.   James Madison, who wrote that we must "beware 'the abridgment of freedom of the people by gradual and silent encroachment by those in power,' would be aghast."

J. PAULEY

J. Pauley starts with al Qaeda, which succeeded on 911 because our conventional intelligence methods could not piece together the threads of intelligence. detect diffuse filaments connecting al-Qaeda. The NSA program is an attempt to correct that.  But, it only works if they collect all the information.

The program is subject to extensive oversight by all three branches. It does "not include the content of any call, the name, address, or financial information of parties to the call, or any cell cite location information."  The database cannot be queried unless one of a few high ranking officials believes there is "'reasonable articulable suspicion'" that an "identifier" (you can look up what that means, but you get the point, I'm sure) has a connection with an international terrorist organization the FBI is investigating so long as it is not solely based on information covered under the First Amendment.  From there the NSA collects the numbers only that that identifier called, then the numbers that all those numbers called. It's a lot of numbers and that's why this is only really possible with powerful computers.  They then determine which information contains foreign intelligence information that would be helpful to the FBI, which gets a digest of the work. But, if the information concerns a U.S. person, it can only be shared outside the NSA if one of the authorized officials determines that it is related to counterterrorism and is necessary to understand "'counterterrorism information or to assess its importance.'"

Because of the safeguards and despite the volume of data taken, between May, 2006 and May, 2009, there were only 277 reports with 2,900 telephone numbers given to anyone outside the NSA. But, it is the collection of almost all telephone data that allows the NSA to do this.  When this is the case, "courts routinely authorize large-scale collections of information, even if most of it will not directly bear on the investigation." Because they warehouse the data, it is also instantaneous. They probably could not get this information without the program.   

He considers Judge Leon's concern about the changes in how we use phones.  He doesn't disagree that there have been changes and phones are much more versatile and there are many more calls. But, it does not change the Supreme Court finding in Smith that there is no subjective expectation of privacy in the data, especially as the what the data is hasn't changed.   

Unlike Leon, he finds the program very effective.  He recognizes the government's concern about giving information on means and methods and finds what they have provided sufficient.

Last, he reminds us that the Fourth Amendment protection is "fundamental, but not absolute" and that the "the bill of rights is not a suicide-pact." (Justice Robert Jackson)

Ultimately, then, the question is - is the program reasonable? He sees no evidence of using the data for any purpose other than to prevent terrorist attacks.  There have been violations but they were self-reported and stopped, and there is oversight by all three branches continues.

He concludes the program is lawful and that the executive and legislative branches have to decide if we should use it; not him.

So, here we have two judges. I was not familiar with either before this, but let's assume they are reasonable human beings (which means, of course, we can't know them too well). They have the same facts but disagree on almost every level.

One thinks that Smith cannot apply because of the changes in technology and culture. The other judges that these changes do not matter because they are still collecting the same information with modern digital technology as they did with the pen register, and there is no more expectation of an individual's privacy with the phone company's data now than there was in the 70s. One judge thinks the government's evidence shows it doesn't serve the purposes it is supposed to and the other that it does.

You notice the things they do agree on. The Fourth Amendment protects important rights, but the law as has been developed, really this past century, is wrapped up in the question of the reasonableness of a search. There's a reason for that. The word is right in the amendment.

The Fourth Amendment states: " The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The inclusion of reasonableness is both the blessing and curse of the Fourth Amendment. Legislatures can predict no better than the rest of us what the future will bring in term of culture or technology, but there will be changes and what will be thought of as reasonable will change. In fact, opinions as to what the founders thought was reasonable will change. It is hardly likely that the founders could conceive that these issues would even be determined in litigation in the manner we do now.  

There are overarching questions here about how to interpret the constitution and what the goals are. I find them all, when taken as absolutes, as absolutely ridiculous.  It is fundamentally impossible to have a system where we both adhere to the "meaning" of the Constitution (whatever that means) and at the same time have a system of precedent, where courts are bound by the rulings in prior cases. We know from experience that over time law often comes to resemble anything but its original text. Sometimes it seems justified and the majority comes to appreciate it.

I usually use the issue of whether certain of the bill of rights are "fundamental" and therefore the government has to have a really good reason and be really careful about how they violate them, as a good example of changing opinions on the law. This issue was hotly debated for decades. With the application of the doctrine to Second Amendment gun rights, even conservatives, traditionally opposed to doctrines which neither by text nor reason makes sense, got on board. Why? Because generally speaking, most of us agree that we like special protection for the rights we think are important. In the very same way, most everyone agrees to interpretations of the Constitution that just seem necessary, though they can't be found in the Constitution. These are numerous, and I don't intend to enumerate them, but you could include things like executive privilege and time, place and manner restrictions to the freedom of speech as examples.

These NSA cases come a half generation after 911. Had they come up in, say, the two years following it, it is not unlikely that far more people would be for the program than are now, just as many people actually thought George Bush's unimpressive faux-Churchillian speech soon after the attacks was - Churchillian, and there was far more support in congress for a draconic "Patriot" Act than there is now.  Today, bin Laden is dead and we have not suffered a major terrorist attack in America by al Qaeda or associates since 911 though certainly they have been planned and individuals or small groups inspired by jihad have succeeded in a less spectacular way.

I am neither a judge nor a legislator and have no need to have an answer other than to satisfy myself. I realized a long time ago that I am relatively more comfortable with not making up my mind, at least for a long time, than many others who are passionate about a subject and very certain of their conclusions from the onset. Some of that I realize is their adherence to one political party or the other, but that would probably not apply here given the political diversity and intermingling of opinion on this subject.  But, these are my main thoughts right now:

1) Of course the Fourth Amendment is important. You can read the text to mean that all searches require a warrant, but we also know that there have always been exceptions, such as emergency or hot pursuit, war and proximity to borders, just as examples.  But, we do still have a default that a warrant based on probable cause and limited in scope is necessary to search someone or their property. General warrants have been abolished, especially for the federal government, since our inception. We must remember that we do this not to protect criminals but to protect the rest of us who are (we believe) entitled to privacy.

2) The problem comes from the concept of what is our property or not. Put another way, what is it that the government can't look at just because it wants to because you have greater rights in it.  If you take your explosive device out in public and others can see it or you leave it on your back seat while you stop to get some lottery tickets, that's plain view, and no warrant is necessary to search and even seize it because you gave up your privacy by going out with it.  But, a bomb is a tangible thing. Other things are far more intangible and it is harder to discern when the notion of privacy ends and the notion of public begins. Because for some, now a majority, believe that "privacy" is very important and that what constitutes it should be expanded, the notion of an "expectation of privacy" was created as an outer limit to what was our property. Therefore it became a "search" for the government to look at it. For others, this is a made up notion not found in the Constitution. Of course, they are right. So we have always done and "they" almost certainly do too when it suits them.  Justice Black wrote a dissent in an important case, arguing that the Constitution protected us with respect to "things," and a phone call was not a thing. Also, that there was no protection given for eavesdropping in the Constitution. I am not a believer in strict construction (though better than limitless construction) or limiting ourselves only to the exact actual words of the Constitution's text, but an interpretation based on a number of things which include the text, but with cognizance that the world will change faster than any Constitution could possibly keep up with and that no system of interpretation can be complete or entirely reasonable in every situation. This assembly probably falls under the category of "pragmatism," but I don't call myself a pragmatist and it is subject to criticism like all theories.  Nevertheless, given the changeable world we live with respect to both technology and culture, I find expectation of privacy a reasonable constitutional approach to words in the constitution which can barely contain what is going on here.

3)  Telephone calls were an early question concerning the expectation of privacy, particularly those outside one's home.  Katz v. U.S. was a seminal case because it established expectation of privacy rather than the tangibility of a "thing" or what was technically property or not as a dispositive principal in Fourth Amendment law.  It involved the content of a conversation from a public phone booth, not the details of the phone company's records.  Thus, Smith, which was discussed above, is more applicable, involving the collection of the metadata only. However, Smith adopted the reasoning of one of the concurring justices (Harlan) opinion in Katz, which was that someone had protective privacy if they subjectively expected privacy and society at large would objectively think it a reasonable to expect it. Both of these notions, of course, requires someone to make a decision in each case as to whether it is true or false.  It's just an opinion and we may disagree.  I believe in a rule of reason with respect to most everything. 

4) So, do we have a reasonable expectation of privacy concerning not the content of our calls or texts, but the data surrounding the call which does not, until researched further, pull up a name? J. Leon says yes, J. Pauley says no. J. Leon says the new technology and ubiquity of phones makes the expectation of privacy even more likely and J. Pauley says despite the new technology, they are still only retrieving the same type of data.

5) On the one hand, I have never heard anyone quarrel that the phone company has their records. In fact, no one would argue but that it is the phone company's records and not the individual's. They aren't medical records. However, we wouldn't want our phone log sent to our neighbors, would we? So, there is some sort of confidentiality associated with it, but is it the type of confidentiality that we normally sweat over so much, such as with our social security number? In other words, is there really an expectation of privacy? I think some, but to the level where we think there should be Constitutional protection? Hard to say that when the records aren't even their own.   

6) But, there is another hand. Just because they are not our records, doesn't mean we want THE GOVERNMENT to have them. The phone company really has no power over us other than they can shut off our service if we fail to pay (or they screw up, as usual). The government does have power over us. Lots. The government can destroy our lives in a heartbeat. We don't want them investigating us, even if they don't know our name, without getting special permission.  

7) Second to last hand - at least hypothetically, the information is guarded so that it is very difficult for anyone to misuse it. Highly regulated, and rarely used (compared to the millions of phone numbers out there) - what is the risk?  

8) Last hand - who trusts them? I don't. Do you? The bill of rights were meant to protect us from the government, particularly the federal government. Sure, maybe they self reported themselves a few times. But, haven't we learned from the FBI and national security letters that even good faith investigations can be terribly invasive when they happen. It's like saying we shouldn't mind a sea wave or so in our house because it is just a little water. 

All that and where do I stand? Didn't I say I haven't made up my mind? But, I also said I was leaning a little to the government. And that's only because of the fact that the records belong to the phone company and not the people. It makes a big difference constitutionally. Arguably, in stretching the concept of what is our property to information about us owned by someone else is far beyond any constitutional text or any necessary implication that strict constructionists and textualists at least, would normally call critical.   

 

But, if I do lean towards allowing the program, it is not without limitations. And, in fact, President Obama has made some unilateral changes to the NSA, which is something a president can actually do (not that this stops many presidents anyway).  For one thing, he now requires the NSA to go to FISA to access the records. Some people don't even find FISA constitutional, or effective, but, there is not enough time to go into that in this one post. It is an improvement that may take much of the sting out of the cases that might come to the Supreme Court, though I have not heard that probable cause will be required, and that is an important concept too.  He also is asking that a 3d party, either the phone company or another official organization hold the data. That will certainly make people feel better, though it probably has no constitutional impact. If it is an unconstitutional search, it will always be the case, no matter who is holding it beforehand. A third change is that the search is now limited to two "hops" - who that person called and who those people called. It used to be three hops and that of course sweeps in a lot more people. Again, I can't say that this will change anything constitutionally, but it will make people sleep better. I'm positive the NSA doesn't like it.

Such are my thoughts. I wonder if the NSA collects and stores blog posts.

 

Of course they do.