NSA program legal and necessary for counter-terrorism
A U.S. federal court ruled today ruled that the National Security Agency (“NSA“) collection of personal telecommunications records is not only legal but is a valuable tool necessary to counter the threat of terrorism.
According to various media reports, the NSA collects, views, categorizes and retains our telecommunications records including our phone calls, texts, and emails. One of the more invasive, but valuable aspects, of the NSA surveillance program is, as the Court noted, that if plumbed it can reveal a “rich profile” of each of us as well as a comprehensive record of all of our associations to one another.
Assuming the above is accurate, to understand the importance of the information the NSA collects, categorizes and retains on each of us, picture a corporate chart with you at the top and imagine that every text, call or email you made in the last few years is an arrow below you, connecting you forever to each of the recipients, whose information is similarly collected, identified, associated and retained. With the push of a button, any number of law enforcement agencies can theoretically obtain your profile and the persons with whom you are, or were formerly, associated. That it’s a critical tool for counter-terrorism efforts is not questioned but it’s the fact that it may inevitably be used by the government for other purposes that is worrisome to privacy advocates. Whether that happens is still a matter to be decided by the U.S. government.
The U.S. American Civil Liberties Union (“ACLU“), among others, brought an action challenging the NSA’s collection of telephone metadata against several defendants, including the Director of NSA and Eric Holder, the AG of the U.S. seeking a declaratory judgment that the NSA’s program exceeded the authority of §215 of the USA Patriot Act of 2001, 50 U.S.C. §1861, and violated the First and Fourth Amendments of the U.S. Constitution and as a preliminary matter, applied for an injunction. The government moved to dismiss the case. The Patriot Act is an acronym for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.
The ACLU’s statutory claims were dismissed purely on immunity grounds and with respect to those claims, the Court noted the absurdity in the fact that but for Edward Snowden’s illegal disclosures, the ACLU would never have learned about the NSA surveillance program authorized by §215 of the Patriot Act. The U.S. Congress did not intend that any of us ever learn about the program and intended to preclude lawsuits by targets even if they did learn of them. The Court held that: “it cannot possibly be that lawbreaking by a government contractor that reveals state secrets could frustrate Congress’ intent…to hold otherwise would spawn mischief.” The Court, in obiter, found that the statutory claims would have failed in any event, likely providing an analysis for the purposes of an appeal.
The Fourth Amendment Constitutional claims are the crux of the decision.
The Fourth Amendment guarantees against unreasonable search and seizure. A “search” occurs for the purposes of the Fourth Amendment when the government violates a person’s reasonable expectation of privacy (Katz v. United States, 389 U.S. 347 (1967)). In Smith v. Maryland, 442 U.S. 735 (1979), the Supreme Court held that an individual has no legitimate expectation of privacy over information they provide to third parties. With respect to the facts of this case, on a daily basis, people voluntarily convey personal information to cellular carriers and other third parties, thereby forfeiting their rights to privacy in the information. Moreover, the government subsequently using data collected by third parties does not violate the Fourth Amendment anymore than accessing a DNA database does. Interestingly, the Court noted that even though our relationships with cellular phone companies have evolved since Smith was decided, the holding in that case is not undermined because, inter alia, individuals still voluntarily provide their personal information to, and through, third parties including cellular carriers. The Court ultimately held that because Smith controls, the NSA’s actions do not violate the Fourth Amendment.
With respect to the First Amendment, the ACLU claimed essentially that the collection of data would have a chilling effect on its operations because individuals and organizations would be deterred from communicating with them, and was therefore unconstitutional. The First Amendment protects the right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious and cultural ends. The Court held that the ACLU position arose from speculative fears that the government would use data collected in relation to the ACLU that relied on a highly attenuated chain of possibilities which was insufficient to create standing or establish a violation of the First Amendment.
The Court held that the NSA program did not violate the First or the Fourth Amendments.
In the result, the ACLU’s case was dismissed and the legality of the NSA surveillance program authorized by §215 of the Patriot Act was upheld.
The Court cited instances in which the NSA program had been used successfully to deter terrorism by identifying terrorists, and the people with whom they are or were associated (by virtue of the theoretical chart I asked you to imagine above connecting you by your texts, calls and emails to a litany of associates, and each of them to a similar labyrinth of associates). Obviously, someone did push a button and the data was “plumbed” to use the Court’s phrase, to flush out the so-called “rich profile” of prospective terrorists.
There are three fundamentally important take-aways from the Court:
- Every day we voluntarily surrender personal and private information to transnational corporations who exploit it for profit and we don’t think twice about it even though that information is far more intrusive that the NSA surveillance program. Yet we take issue when the government operates a less intrusive program using the information we volunteer to third parties;
- Liberty and security can be reconciled within the framework of the law and we do not have to make a choice between them because nothing is more apt to imperil civil liberties than the success of a terrorist attack; and
- The right to be free from searches and seizures is fundamental but not absolute – “the Bill of Rights is not a suicide pact.”
With respect to the first point, the Court was no doubt highlighting the fact that it is inconsistent for citizens to voluntarily provide personal information to third parties a hundred times a day on Facebook, through GMail, MobileMe, Hotmail and Yahoo, by domains they register in the U.S., by texting through cellular towers, through cellular providers, on Google and other search engines, and through servers in the U.S., knowing that the Internet and texts are not secure methods of communication and that their communications are not protected, and then make a claim against the government for using the personal information they shared for all the world to see.