On Monday, the Court ruled that government could seize the DNA of those that it arrests even if such arrests were illegal. In a fiery dissent, which he read aloud in the courtroom in a booming voice, Justice Antonin Scalia reminded Americans that:
'At the time of the Founding, Americans despised the British use of the so-called 'general warrants'—warrants not grounded upon a sworn oath of a specific infraction by a particular individual, and thus no limited in scope and application.'
At the time, I implored some people, whose cheerleading surprised me, to consider what they were applauding and to what it could lead. Some accused me, once again, of being part of the 'black helicopter crowd.' Many of those voices went into stunned silence upon the release of the blockbuster story in The Guardian about the metadata of tens of millions of Verizon customers being gathered under a warrant by the Obama administration. The massive surveillance state created under the Bush administration pursuant to the ill-conceived Patriot Act and now given the Obama seal of approval makes the Founders' concern about the oppressive intrusiveness represented by the deposed King George III's 'general warrants' appear quaint. So, it was with some surprise that those that 'got it' on Monday with the Maryland v King decision have totally failed to see the problem with the Surveillance State.
In several posts today, Andy McCarthy defends the broad power of the Federal government to collect meta-data on American citizens. He makes his argument, primarily, based upon the holding in Smith v Maryland, 442 U.S. 735 (1979) (1979). With all due respect I raise the following in rebuttal...
The problems that I see with trying to apply the ruling in Smith v Maryland to this situation are many-fold:
1. Unlike the situation in the Verizon matter, a specific crime had been committed before ‘the telephone company, at police request, installed a pen register at its central offices to record the numbers dialed.’ In Smith, that crime was a robbery committed upon the person of Patricia McDonough.
2. Unlike the Verizon situation where the meta-data of tens of millions of Americans is being collected, the police actually had identified a person of interest and he was so named. The Smith case did not involve a sort of electronic dragnet with an unnamed suspect(s).
3. Unlike the meta-data collection in the Verizon case, the pen register installed did NOT collect data on every telephone call handled by the phone company. Following the robbery, Ms McDonough had begun receiving threatening telephone calls from someone purporting to be the person who had robbed her. In that case, the pen register SOLELY collected ‘the numbers dialed from the telephone at [SUSPECT'S] home.’ The data collection was LIMITED to the suspect.
4. Unlike the Verizon data gathering, the Smith case was not one where potential/possible conspirators or future bad actors were under surveillance. In other words, the purpose of the Smith pen register was to locate a specific someone, who had already committed a specified crime. Now, I understand that there may be (and probably are) terrorists and conspirators in the United States, who have committed a crime (even just a conspiracy to commit an act of terror that was not carried out) and have escaped prosecution, but the government’s present position is that ALL AMERICANS ARE POTENTIAL TERRORISTS.
5. As we saw with United States v Jones, 132 S.Ct. 945, last year, the government cannot argue that people have no expectation of privacy because, well, it says so. The unanimous Court (on the judgment, but 5/4 on the reasoning) held that people did have expectations of privacy that extended further than just their immediate persons and homes. The government could NOT electronically track – via GPS – the vehicles without a warrant because they were located on public streets. Yes, you do still possess, at least a modicum of, an expectation of privacy even in public.
So, while Smith may have stand for the proposition that telephone records are not ‘private papers’ in a Fourth Amendment sense, I think that there is a critical difference between a situation where meta-data is being gathered from SPECIFIC PEOPLE after a SPECIFIC CRIME has been committed when those SPECIFIC PEOPLE have been NAMED and one where the government is collecting data on tens of millions of UNSPECIFIED PEOPLE, whose information is being collected relative to an UNSPECIFIED CRIME that has been committed or a future SPECIFIC CRIME may be in the planning stages, in a spaghetti-thrown-at-the-wall-to-see-what-sticks manner.
As Justice Potter Stewart, writing in Katz v United States, explained in 1967:
The Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.
Also, we should bear in mind that the author of the Patriot Act believes that the meta-data gathering on tens of millions of Americans, domestically, is not what was intended:
‘As the author of the Patriot Act, I am extremely troubled by the FBI’s interpretation of this legislation. While I believe the Patriot Act appropriately balanced national security concerns and civil rights, I have always worried about potential abuses.
The Bureau’s broad application for phone records was made under the so-called business records provision of the Act. I do not believe the broadly drafted FISA order is consistent with the requirements of the Patriot Act. Seizing phone records of millions of innocent people is excessive and un-American.
I insisted upon sunsetting (section 215 of the act) in order to ensure Congress had an opportunity to reassess the impact the provision had on civil liberties. I also closely monitored and relied on testimony from the Administration about how the Act was being interpreted to ensure that abuses had not occurred.
The Department’s testimony left the Committee with the impression that the Administration was using the business records provision sparingly and for specific materials. The recently released FISA order, however, could not have been drafted more broadly.
I do not believe the released FISA order is consistent with the requirements of the Patriot Act. How could the phone records of so many innocent Americans be relevant to an authorized investigation as required by the Act?’
- Rep Jim Sensenbrenner (R-WI), 6 June 2013
One might ask: ‘So what? It’s not like the government is actually listening in on the conversations. It’s only meta-data. I mean, what’s the big deal?’ From Jane Mayer…
A White House official made the same points to reporters, saying, “The order reprinted overnight does not allow the government to listen in on anyone’s telephone calls” and was subject to “a robust legal regime.” The gist of the defense was that, in contrast to what took place under the Bush Administration, this form of secret domestic surveillance was legitimate because Congress had authorized it, and the judicial branch had ratified it, and the actual words spoken by one American to another were still private. So how bad could it be?
The answer, according to the mathematician and former Sun Microsystems engineer Susan Landau, whom I interviewed while reporting on the plight of the former N.S.A. whistleblower Thomas Drake and who is also the author of “Surveillance or Security?,” is that it’s worse than many might think.
“The public doesn’t understand,” she told me, speaking about so-called metadata. “It’s much more intrusive than content.” She explained that the government can learn immense amounts of proprietary information by studying “who you call, and who they call. If you can track that, you know exactly what is happening—you don’t need the content.”
For example, she said, in the world of business, a pattern of phone calls from key executives can reveal impending corporate takeovers. Personal phone calls can also reveal sensitive medical information: “You can see a call to a gynecologist, and then a call to an oncologist, and then a call to close family members.” And information from cell-phone towers can reveal the caller’s location. Metadata, she pointed out, can be so revelatory about whom reporters talk to in order to get sensitive stories that it can make more traditional tools in leak investigations, like search warrants and subpoenas, look quaint. “You can see the sources,” she said. When the F.B.I. obtains such records from news agencies, the Attorney General is required to sign off on each invasion of privacy. When the N.S.A. sweeps up millions of records a minute, it’s unclear if any such brakes are applied.
Metadata, Landau noted, can also reveal sensitive political information, showing, for instance, if opposition leaders are meeting, who is involved, where they gather, and for how long. Such data can reveal, too, who is romantically involved with whom, by tracking the locations of cell phones at night.
Binney, who considered himself a conservative, feared that the N.S.A.’s data-mining program was so extensive that it could help “create an Orwellian state.”
As he told me at the time, wiretap surveillance requires trained human operators, but data mining is an automated process, which means that the entire country can be watched. Conceivably, the government could “monitor the Tea Party, or reporters, whatever group or organization you want to target,” he said. “It’s exactly what the Founding Fathers never wanted.”
And, what, if any, limiting principle should exist? Or, perhaps, the government believes that there should be no limit because, well, ‘if we can save one life or prevent one terrorist attack…’ If that’s the case, then ALL data of EVERY kind is potentially relevant in EVERY case. At that point – and this goes along with the argument against ‘the world is a battlefield’ position that those with a totalitarian temptation have. For, if the world is a battlefield, then there is no need for the Constitution since martial/military law applies. For, if ALL data is relevant in ALL cases, then there is no longer anything protected under the Bill of Rights.
As Benjamin Wittes of the Brookings Institute and the Lawfare blog writes:
We have only the order itself, not the application that underlies it, but I have a hard time imagining the application that could have produced it. Section 215, codified in law as 50 U.S.C. § 1861, allows the government to apply to the FISA court for an order for production “of any tangible things . . . for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities. . . .”
To acquire such an order, the government does not have to do much—just as it doesn’t have to do much in a criminal investigation: It merely has to offer, in pertinent part, “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation . . . to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.”
But even if this were not the case, how is it possible that all calls to, say, Domino’s Pizza in Peoria, Illinois or all calls over a three month period between two small businesses in Juneau, Alaska would be “relevant” to an investigation of events in Boston—even if we assume that the FBI did not know whom it was investigating in the Boston area and did not know whom that unknown person was communicating with?
So I’m trying to imagine what conceivable of facts would render all telephony metadata generated in the United States “relevant” to an investigation, presumably of the bombing. This would include, of course, all telephony metadata that, as matters turned out, postdates the killing of one bomber and the capture of the other—though there’s no way the government could have known that when the application was submitted. And it would also include all telephony metadata that postdates the government’s conclusion that the Tsarnaev brothers were apparently not agents of any foreign terrorist group.
I think the only possible answer to this question is that a dataset of this size could be “relevant” because there are ways of analyzing big datasets algorithmically to yield all kinds of interesting things—but only if the dataset is known to include all of the possibly-relevant material. The data may not be relevant, but the dataset is relevant because it is complete—and therefore is sure to include any communications by whomever the bombers turn out to be.
The trouble is that if that constitutes relevance for purposes of Section 215—or for purposes of grand jury subpoena, for that matter—then isn’t all data relevant to all investigations?
And, why should we be concerned with the Surveillance State? Well, Senator Fred Church told us in 1975:
'That [surveillance] capability at any time could be turned around on the American people and no American would have any privacy left, such [is] the capability to monitor everything: telephone conversations, telegrams, it doesn't matter. There would be no place to hide. If this government ever became a tyranny, if a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back, because the most careful effort to combine together in resistance to the government, no matter how privately it was done, is within the reach of the government to know. Such is the capability of this technology ...
I don't want to see this country ever go across the bridge. I know the capacity that is there to make tyranny total in America, and we must see to it that this agency [NSA] and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return.'
-- Senator Frank Church (D-Idaho), 1975, quoted in James Bamford's The Puzzle Palace
To again quote Justice Scalia from his dissent in Maryland v King:
‘Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail.’
- Justice Antoin Scalia, dissent, Maryland v King, 2013
If such is true about unsolved crimes, it is more than true for crimes that have yet to take place.
So, while it may be ‘legal’ for the Federal government to collect meta-data because Americans, allegedly, have no expectation of privacy relative to it and they aren’t listening in on conversations, it doesn’t mean that this is the type of power that we want it to have or the type of country in which we want to live. It is one thing to use such tools in cases such as Smith and quite another to employ them on much of the American public.