The NSA, the Fourth Amendment, and You

A quick recap of events so far:

  • On Wednesday, The Guardian leaked a top secret order from the US government to Verizon. The order demanded that Verizon hand over
    all its telephone metadata for a three-month period to the National Security Agency (NSA), and forbade them from telling anyone about it.
  • In the following days, government officials of both parties (including several Senators and President Obama) defended the order. Senator Dianne Feinstein said the order was merely a “three-month renewal of what has been in place for the past seven years.”
  • The man who leaked the story has voluntarily stepped forward and revealed himself. His name is Edward Snowden, and he is staying right this moment in a hotel in Hong Kong. He claims he disclosed this information because it poses “an existential threat to democracy.” US government officials are calling for his extradition.

Since the program has been going on for years, it seems unlikely that Verizon alone would be singled out for this kind of surveillance. (Especially since a program called PRISM has been revealed as collecting much the same data from Internet traffic.) Therefore, it appears very likely that the NSA has a database – stretching back years – of many or most phone calls by Americans, even if they are to other Americans in the US.

In his defense of the program, President Obama told the American people, “Nobody’s listening to your phone calls.” Assuming the program is limited to what we’ve seen in the leaked order, Obama’s statement is technically true. The audio of the calls is out of scope. What’s in scope is the call “metadata,” which includes phone numbers, call times and dates, length of calls, and geographical locations (to the extent that cell towers can be used to determine them).

To reiterate: this is not just certain records, or a certain region, or a certain time period. This is all Americans, on an ongoing basis.

As a reminder, the Fourth Amendment to the U.S. Constitution reads:

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.

US privacy and surveillance laws have become a tangled mess, especially since the passage of the Patriot Act, so this program is probably “legal.” But it’s hard to see how any of the relevant laws could be Constitutional. The Fourth Amendment is remarkably clear.

Most major news editorials are condemning the program as a massive overreach. A notable exception was the Wall Street Journal, which defended the NSA’s actions:

The outrage this time seems to stem from the fact that the government is widely collecting call records, not merely those associated with a particular suspect or group. But this fear misunderstands how the program works. From what we know, the NSA runs algorithms over the call log database, searching for suspicious patterns over time….

If the NSA’s version of a computer science department operates like the rest of FISA, the government is cautious to ensure that its searches are narrowly tailored and specific protocols are reviewed by FISA judges. Mike Rogers, the Chairman of the House Intelligence Committee, said Thursday that the program had helped disrupt a major domestic terror attack in recent years.

The critics nonetheless say the NSA program is a violation of privacy, or illegal, or unconstitutional, or all of the above. But nobody’s civil liberties are violated by tech companies or banks that constantly run the same kinds of data analysis. We bow to no one in our desire to limit government power, but data-mining is less intrusive on individuals than routine airport security. The data sweep is worth it if it prevents terror attacks that would lead politicians to endorse far greater harm to civil liberties.

It’s true that analyzing large datasets is not necessarily an affront to individual privacy – if that’s really all they’re doing, if nobody has direct access to the specifics of the data itself, and if there’s no way anybody ever could get access to that data. The first two are at least possible; the third is not. No system can be perfectly secure, as the NSA well knows.

Edward Snowden’s action in revealing this program was illegal. But the program itself seems to be far more illegal.

New details are emerging constantly, but from what we know now, Mr. Snowden looks an awful lot like a hero. And speaking as someone who voted for him (twice), I don’t think I’ve ever been so disgusted with President Obama.

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