Surveillance Rights and Wrongs, Part 2: No Clear Answers
Two U.S. District Court judges have now handed down diametrically opposed rulings on the legality and constitutionality of the National Security Agency's collection of Americans' telephony metadata. As the world awaits a definitive ruling -- potentially from the Supreme Court, but probably not anytime soon -- the NSA's collection will continue.
Jan 4, 2014 5:00 AM PT
Civil liberties groups and privacy advocates in the United States rejoiced when U.S. Federal District Court Judge Richard Leon ruled last month that the NSA's collection of bulk telephony metadata is likely a violation of the Fourth Amendment to the U.S. Constitution.
However, their joy was short-lived. Later in the month, in a lawsuit filed by the American Civil Liberties Union against such collection on constitutional grounds, U.S. District Court Judge William Pauley of the Southern District Court of New York ruled that it is legal.
The NSA is regulated because the executive branch must seek judicial approval from the Foreign Intelligence Surveillance Court before conducting surveillance under Section 215, then provide reports to various congressional committees twice yearly, Judge Pauley said.
"We are very disappointed with the decision, and are looking forward to appealing it," Brett Max Kaufman, attorney with the National Security Project at the ACLU, told the E-Commerce Times. "Judges Leon and Pauley came to vastly different conclusions on every point of the case."
The Myth of FISC's Powers
FISC's oversight of the NSA's activities has been elevated to the status of a myth. The Obama administration and supporters of NSA surveillance point to the court's oversight of the agency as protection against potential misbehavior. Judge Pauley's ruling stated that 15 FISC judges had ruled 35 times that the metadata collection program was lawful.
However, FISC's chief judge, Reggie Walton, has admitted that the FISC was forced to rely on the accuracy of the information it was provided, and could not investigate allegations of noncompliance by the NSA.
NSA staffers in Washington overstepped their authority thousands of times a year, The Washington Post reported -- and the number of violations was increasing.
Further, Judge Andrew Napolitano has argued that the FISC itself is unconstitutional.
Note that the court's rulings are not subject to public scrutiny. Moreover, it hears only the government's side of a case. The court has reportedly been issuing rulings that assess broad constitutional questions and establish judicial precedents without oversight, including carving out an exception to the requirement for a warrant for searches and seizures as laid out in the Fourth Amendment.
That Pesky Fourth Amendment
The Fourth Amendment's protections appear to be difficult to comprehend for supporters of the NSA's surveillance programs.
Back in 2006, Michael Hayden, who was then principal deputy director of national intelligence, contended that the Fourth Amendment did not include probable cause.
Local law enforcement agencies also seem to not quite understand the Fourth Amendment.
Police in Seattle, for instance, set up a digital wireless network for law enforcement officers that could surreptitiously collect data on the Internet-ready devices of anyone within range. Public outrage forced the police department to disable the network until city lawmakers come up with an appropriate policy.
The Boston police department ran a license-plate reader program that scanned the license plates of more than 68,000 vehicles over a six-month period -- some repeatedly -- but there was no indication that the technology was being used to combat crime. For example, a stolen Harley-Davidson motorcycle had been tagged 59 times during that period and an email alert had been automatically sent to the police each time, but no order was given to retrieve the vehicle.
On Dec. 15 the department suspended the program indefinitely pending further review, also in the wake of public outrage.
The Camden, N.J., police department, meanwhile, monitors the public with its "Sky Patrol," a mobile, 40-foot-high booth equipped with cameras, thermal imaging sensors and other sophisticated technology. It is also reportedly installing 120 cameras citywide to monitor the city and has installed microphones that it calls "shot detectors" over about one-third of the city.
Police departments throughout the U.S. are adopting predictive analytics to determine in advance when and where patterns of crime will occur.
The Texas Court of Criminal Appeals ruled in December that police may even obtain a search warrant based on the prediction of a future crime, Alternet.org reported.
Where's the Privacy Beef?
Still, Americans happily hand over their private data to Facebook, Google and other Internet companies in exchange for free services, so why are they concerned about the NSA's gathering of what is essentially similar data?
Every day, people voluntarily surrender personal and seemingly private information to transnational corporations, which exploit that data for profit, Judge Pauley said. Few think twice about it, even though it is far more intrusive than bulk telephony metadata collection.
"Americans have a flexible viewpoint on privacy," technology and intellectual property attorney Raymond Van Dyke, principal at Van Dyke Law, told the E-Commerce Times. "They favor NSA actions to curtail the evil-doers out there, but want their freedom from search and seizure too."
The "huge amount of data created every day" is not all protected, and should not be, Van Dyke stated. "As noted by Judge Pauley, the vast amount of metadata out there is not subject to strong privacy protections."
Each individual "is oddly better protected" when the NSA collects the metadata of phone calls made by millions of Americans because any individual's data is lost in compilation, Van Dyke pointed out.
Lawyers Forced to Go to Law
The right to be free from searches and seizures is fundamental but not absolute, Judge Pauley noted. Whether the Fourth Amendment protects bulk telephony metadata is ultimately a question of reasonableness.
Expect appeals, counter-appeals and, eventually, a reaching out to the U.S. Supreme Court as the battle over NSA surveillance continues.
"It is not uncommon for district judges to reach different conclusions," Yasha Heidari, managing partner with Heidari Power Law Group, told the E-Commerce Times. "Procedural issues aside, I believe Judge Leon's opinion has more compelling substantive arguments. Unfortunately, I believe an appellate court would be more inclined to adopt Judge Pauley's reasoning."
The two judges' "vastly differing opinions show this issue is hotly contested," Heidari continued. Ultimately, the issue would be best resolved by the U.S. Supreme Court.