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.
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.
http://tinyurl.com/l33n9ra
