Glenn Greenwald of The Guardian had a major scoop yesterday, revealing a court order requiring the communications giant Verizon to hand over information about all the calls in its system, domestic or international. As Greenwald explains, this means "the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing."
This is a major story that reveals glaring flaws in the current rules governing surveillance and national security—particularly since, as Atlantic Wire's Elspeth Reeve points out, it's unlikely that Verizon is the only company being required to turn over records of the calls made by its customers, or that this is the only type of information being sought by the government
To be clear, the potential legal and policy problems of this policy are not the same as those of the Bush administration's warrantless wiretapping, which went ahead without the approval of the special court established by the Foreign Intelligence Surveillance Act of 1978. These actions were illegal on their face and held to be illegal by a federal judge in 2010. The program revealed by the Verizon order, conversely, went forward after obtaining the warrant required by the modified FISA of 2007. It was also less intrusive, collecting data about calls but not listening on on them.
"Better than the administration that employed John Yoo to offer legal guidance on counterterrorism policy," however, is not the standard by which the Obama administration should properly be judged. At the very least, the indiscriminate nature of the Verizon order indicates flaws with the FISA framework established by Congress in 2007 and recently extended until 2017. The key problem, as Orin Kerr explains, is the 2007 statute "says that the “things” that are collected must be relevant to a national security investigation or threat assessment, but it says nothing about the scope of the things obtained."
The vagueness of the "relevance" requirement and the lack of scope restriction means that Congress wrote a near blank check to the executive branch. The fact that the Obama administration's actions were authorized by Congress does not let it off the hook. The White House isn't required to use the powers it was granted.
The legal questions don't end simply because the Verizon order appears to be consistent with the framework established by Congress either. Both Congress and the executive branch remain bound by the Fourth Amendment, which requires that searches and seizures be "reasonable," with warrants to be issued only with "probable cause." Admittedly, if by "legal" we mean nothing more than a prediction about "how the current Supreme Court will rule," it is vanishingly unlikely to be found illegal. The kind of data requested by the Verizon order represents a legal gray area, less intrusive in its invasions of privacy than wiretapping (where this kind of indiscriminate spying would almost certainly violate existing Fourth Amendment law), but potentially more intrusive than searching garbage left outside a home (which doesn't enjoy an expectation of privacy under the Fourth Amendment.) There is little chance, however, that this case will be the basis for new law establishing broader Fourth Amendment protections for electronic communications. The current Court is not known for its robust interpretation of the Fourth Amendment to begin with, and historically the Supreme Court hardly ever interfered with national security policy when Congress and the executive branch are acting in concert.
That the Supreme Court probably won't hear a challenge to current FISA arrangement and would probably uphold it if it did doesn't make the Court right, however. Creating "national security" exemptions to the Fourth Amendment in the context of an open-ended conflict where the whole world is the battlefield and the conflict has no clear end point is very dangerous and hard to square with the requirements of the Bill of Rights. The fact that data about the communications of (at a minimum) millions of people are being monitored and stored by the government although the vast majority of them are not suspected of terrorist activity is an illustration that the broad authorization created by FISA could (like the "war on drugs" only worse) create a Fourth Amendment exceptions that nearly swallow the rule. Modern surveillance technology creates the vast potential for abuse, and as long as the Supreme Court maintains a hands-off pose such abuses are, even if we charitably assume are not ongoing, are inevitable.
Finally, it's important to resist assumptions of a zero-sum tradeoff between civil liberties abuses and national security. Even if we assume for the sake of argument that this policy is legal, this doesn't make it desirable even from a strictly policy perspective. Counterterrorism resources are, after all, finite. Analyzing collected data indiscriminately has the clear potential to produce false positives and wild goose chases that are ultimately an inefficient use of resources. Individualized suspicion is not only more protective of civil liberties but generally is a more effective basis for crime fighting as well.
Despite the implications of the Verizon order, it is unfortunately all too likely that the current surveillance framework will remain in place for the foreseeable future. I would like to agree with Cindy Cohn of the Electronic Frontier Foundation when she says that "I don’t think Congress thought it was authorizing dragnet surveillance." But my guess is that congressional majorities will continue to authorize extremely broad discretion to the president, even if they reserve the right to be "shocked" when the inevitable abuses of privacy occur.
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