Is the cure for terrorism worse than the disease?

Tweet

By: Glen Blumhardt, Guest Contributor

Editor’s Note: The Campbell Law Observer has partnered with Judge Paul C. Ridgeway, Resident Superior Court Judge of the 10th Judicial District, to provide students from his Law and Public Policy seminar the opportunity to have their research papers published with the CLO.  The following article is one of many guest contributions from Campbell Law students to be published over the summer. 

The 1941 surprise attack against the pacific fleet anchored in Pearl Harbor gripped Americans with fear, suspicion, and the urge to take immediate action in order to defend against another crippling blow.  In response, the government directed the internment of Japanese Americans, an action that was subsequently challenged and upheld by the U.S. Supreme Court.  On September 11, 2001, some sixty years later, an attack against the United States once again thrust this country into a familiar mindset of suspicion and fear, where the compelling interests of the government to preserve national security seemingly outweighed the privacy interests of individual citizens.

As part of the increased push for national security, the National Security Agency (NSA) began collecting huge amounts of data on U.S. citizens.  Edward Snowden, a former NSA intelligence analyst, first shed light on the government’s data collection efforts when he publicized volumes of classified documents.  These documents exposed classified government intelligence programs designed to monitor and collect vast amounts of information about the private lives of United States citizens and implicated several constitutional concerns.  Opponents of the law argue that he government’s warrantless collection of metadata (data that provides information about other data) from individual citizens constitutes an unreasonable search and seizure, while supporters believe that the nation’s interest in safeguarding against terrorism outweighs individual privacy interests.

The argument is no longer confined to mere phone numbers or calling logs, as metadata encompasses vast quantities and origins of information. 

 The 1979 Supreme Court decision in Smith v. Maryland established a critical foundation for much of the government’s future arguments, stating that it was unlikely that users of telephones had any reasonable expectation of privacy when the government used a pen register to collect the telephone numbers that were dialed from a phone line.  The Court further found that even if there was a subjective expectation of privacy on behalf of a specific party, it was “not ‘one that society [was] prepared to recognize as reasonable.’”  The Foreign Intelligence and Surveillance Act Courts (FISA Courts) have subsequently relied heavily on this indispensable precedent of the Court and further maintained “as a general matter, there is no reasonable expectation of privacy under the Fourth Amendment in the metadata to be collected.”  Moreover, “the Court ‘consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties,’ since he ‘assume[s] the risk’ that the third party would turn that information over to the government.”

Congress legally justified the collection of phone records under Section 215 of the USA Patriot Act (pdf), which was rapidly passed in the days that followed the 9/11 attack as a necessary and vital step to defeat the threat of terrorism against America.  The USA Patriot Act aggressively expanded the authorities of the Foreign Intelligence Surveillance Act and authorized the Federal Bureau of Investigation to apply for a FISA court order to seize “any tangible things (including books, records, papers, documents, and other items).”  The argument is no longer confined to mere phone numbers or calling logs, as metadata encompasses vast quantities and origins of information.  Metadata clearly includes the phone numbers of all parties participating in phone calls and texts, so a reasonable leap applies the same accessibility to ‘senders’ and ‘recipients’ of emails. ¹  However, the courts have affirmed metadata does not include ‘content’ of phone calls nor ‘content’ from the ‘subject line’ or the body of email messages.

The next step in the evolution of metadata collection considerably broadened the capacity of governmental collection efforts.  The government aggressively expanded its efforts from collection directed against sole telephone accounts to include the legal collection of bulk metadata from third party providers or major telecommunications companies.  Bulk collection was not constrained to, nor did it specifically target individual phone or email accounts but, rather, was better characterized as the vast culling of ‘content-less’ information by the NSA directly from third-party providers.  The media shed light on a classified FISA court order on May 24, 2006, that provided specific phone companies’ call databases over expansive periods of time to the FBI.  Further, evidence revealed major telecommunications companies (such as Bell South, AT&T, etc.) voluntarily handed over their call databases to the government for valuable consideration until a New York Times article exposed this initiative.  In light of this exposure, the phone companies retreated from their position of voluntarily sharing bulk data with the government fearing potential public backlash, but the FISA courts stepped in and compelled the companies to produce the same bulk information in a classified holding.  The argument for the collection of bulk meta data, similar to the collection of singular source data, relies heavily on the Court’s characterization of information shared by third party providers, a decision arguably made when the technological advancements in cell phones and email communications capabilities were unimaginable.  The next controversial leap occurred when the government aimed its bulk collection efforts at the vast quantities of communications and information which existed on the internet.

The NSA’s most recent bulk data collection program is a complex network comprised of numerous initiatives, sub-components and subordinate programs with vast capabilities and capacities.  Targeted data likely goes far beyond the basic warrantless collection of individuals’ phone call records and email or even the bulk collection initiatives directed at the major tele-communications companies discussed above.  For instance, the NSA’s formerly top secret Prism Program targets email content, internet use, social media interactions, live chats, video conferencing, and other forms of internet based communications through access of the internet giants such as Apple, Microsoft, AOL, Google, Yahoo, and Facebook.  The program also identified providers, such as Dropbox, who were not yet integrated into the collection program but were characterized as providers that the NSA planned to add to the PRISM program in order to “expand collection services from existing providers.”

Rulings have been mixed in cases challenging the data collection program as an unconstitutional search.  Judge Richard Leon of the U.S. District Court for the District of Columbia held that the bulk data collection on all telephone calls made in the United States was likely unconstitutional as it violated the protections against unreasonable searches, but subsequently stayed his decision until the appellate courts could address the matter.  Leon further criticized the government’s reliance on the Supreme Court’s 1979 holding in Smith v. Maryland as outdated and overcome by “technological advances and a cell phone-centric lifestyle heretofore inconceivable.” Just days later on December 27, 2013, a Judge William H. Pauley of the U.S. District Court for the Southern District of New York held the bulk collection of phone data was legal relying on the same Supreme Court precedent Leon had criticized.

The argument surrounding the government’s interest in the information collected by the program will likely not focus on whether or not there exists a compelling interest to collect information, but rather on what degree of intrusion is acceptable.

The NSA, along with the intelligence community and other government agencies, argue that the program is necessary in order to safeguard national security.  One FISA court opinion weighed the government’s interests at stake and held, “[i]n summary, the bulk collection is analogous to suspicionless searches or seizures that have been upheld under the Fourth Amendment in that the Government’s need is compelling and immediate, the intrusion on individual privacy interests is limited and bulk collection appears to be a reasonably effective means of detecting and monitoring.”

President Obama recently promised to focus intense scrutiny on the government’s policies for collection efforts against American citizens and revamp them in order to prevent potential Fourth Amendment violations through unlawful searches.  The president detailed new safeguards aimed at overhauling the collection of bulk metadata and stated, “[e]ffective immediately, we will only pursue phone calls that are two steps removed from a number associated with a terrorist organization instead of three, and I have directed the Attorney General to work with the Foreign Intelligence Surveillance Court so that during this transition period, the database can be queried only after a judicial finding, or in a true emergency.”  However, the president also justified the NSA’s data collection and stated the impetus for the authority of the Act was when “one of the 9/11 hijackers—Khalid al-Mihdhar—made a phone call from San Diego to a known al-Qaida safe house in Yemen, [the] NSA saw that call, but could not see that it was coming from an individual already in the United States.”   Thus, while the President has promised the nation to carefully review the collection of bulk metadata, he is also very aware of the danger posed by being blind existing threats.

The Director of National Intelligence also defended the programs aimed at collecting bulk metadata and stated, “information collected under this program is among the most important and valuable foreign intelligence information we collect, and is used to protect our nation from a wide variety of threats.”  He further characterized the “unauthorized disclosure of information about this important and entirely legal program” as “reprehensible and risk[ing] important protections for the security of America.”

The argument surrounding the government’s interest in the the program will likely not focus on whether a compelling interest to collect the information exists, but rather on what degree of intrusion is acceptable.  The president has made the government’s position clear, “[w]e cannot prevent terrorist attacks or cyberthreats, without some capability to penetrate digital communications.”  This amount of capability is likely best measured by proximity to real-world threats that will further demand actions, reactions and counteractions.

Public opinion may very well serve as the decisive catalyst for any change with respect to the warrantless collection of metadata.

The present policy approach, supported by the existing law and its interpretation by the courts, appear to support the collection of bulk metadata from persons on U.S. soil and are not in violation of individual privacy concerns under the Fourth Amendment.  This position is further bolstered by the government’s compelling interest in protecting national security against potential terrorist plots; a position magnified exponentially during times of crisis as witnessed during the periods that followed the attack on Pearl Harbor as a precursor to World War II and more recently following the 9/11 terrorist attacks.

The tension created by the widening gap between law and technology provides a rich area for the crafting of policy by both a dynamic judiciary and the legislature.  These groups will be forced to wrestle with critical public policy decisions regarding the collection of metadata amidst Fourth Amendment concerns over unreasonable searches.  However, the issue will be fought most aggressively in the court of public opinion.  In the wake of Snowden’s recent ‘public disclosure’ of the government’s initiatives and programs, public pressure forced President Obama to promise sweeping reforms with respect to the government’s intelligence policies regarding bulk collection of data.  In fact, the President’s actions in response to these demands and any resultant changes in legislation may serve to preclude further litigation from reaching the Supreme Court and therefore exempt any necessity for a determinative ruling by the judiciary on the matter.  Public opinion may very well serve as the decisive catalyst for any change with respect to the warrantless collection of metadata.

Glen Blumhardt is a rising 3L at Campbell Law. Glen can be reached by email at gb*************@em***.edu.