The big story of the day is District Judge Richard J. Leon’s ruling earlier this month that the National Security Agency (NSA), with its warrantless collection of the phone records of every American, is likely violating the Fourth Amendment’s provision against unreasonable search and seizure. The impact of Leon’s ruling was somewhat dampened last week (12/27) when U.S. District Judge William H. Pauley ruled that the NSA’s surveillance is legal. Leon’s ruling did still make an impact, bringing into question the behavior of the entire government, since all branches of the federal government-the judicial, legislative, and executive- have fallen in line with the mass surveillance program, as follows.
-The judicial branch: In 1979 the Supreme Court, in Smith vs. Maryland, supposedly established the constitutionality of government collection of telephone metadata (i.e. call records excluding content). The logic was that the information had already been given to a third party (i.e. the phone company) voluntarily by the caller, so there was no reasonable “expectation of privacy” with regard to it. Jim Harper at Cato, though, explains why the ruling is not a sound basis for the claim that NSA spying is constitutional. Howard Cardin, the defense attorney in the case, stated with regard to the current surveillance debacle that “nobody ever thought this would happen.”
Leon’s ruling recognizes the changes in communication technology since 1979 and calls for a revised approach to metadata and the Fourth Amendment. As noted, the challenges to Leon’s ruling have already begun. The ACLU has vowed to appeal Judge Pauley’s decision.
-The legislative branch: In July of this year, Congress narrowly failed (205-217) to pass the strongest attempt to reign in the NSA. An amendment to the 2013 Defense Omnibus spending bill from Rep. Justin Amash (R-MI) would have required justification for specific data grabs.
-The executive branch: President Obama has made clear that he has no intention of translating the pro-privacy rhetoric of his Senate career into action as President. A recent New Yorker article by Ryan Lizza tells the story of Obama’s one-eighty on the surveillance state. After vigorously arguing against (but voting in favor of) the invasive elements of the Patriot Act that laid the groundwork for the current NSA data grabs, Obama as President blandly tells the American people to relax because “no one is listening in on your calls.” Everything is okay, because the NSA only knows whom you’re calling, when, for how long, how often, and from what location, not to mention all the data collected on internet use. Whew, what a relief!
One might add the media to the failed branches of government, because what we call our “free press” is arguably a crucial fourth element of our system of checks and balances. But if last Sunday’s (12/15/13) 60 Minutes program was any indication, the traditional media networks have quit this role. In his widely criticized interview with NSA head General Keith Alexander, senior CBS correspondent John Miller uncritically allowed Alexander to explain why collecting the telephone history of every American is no big deal. After all, it’s just the records of every phone call made by everyone in the country, and the government needs that information in case it has to locate a “bad guy” who plans to “do bad things.” He even described this as “the least intrusive way of doing that.”
There’s no need for any further oversight or alarm, because of course the government would never listen in on our calls. There is simply “no intelligence value” in listening to people’s phone calls or reading their emails, he claims without explanation. Alexander repeatedly claimed that critics’ characterizations of the surveillance program were inaccurate, but “corrected” them without being able to directly contradict them. Critics, on the other hand, quickly pointed out many misleading elements of his claims.
Miller appeared to find Alexander’s soothing reassurances sufficient. There were none of the pointed challenges 60 Minutes watchers remember from investigators like Mike Wallace. Ditto for the reports on the topic by the four major news networks’ (CBS, ABC, Fox, and NBC) nightly shows.
The framers of our American style government created our system of checks and balances so that no single faction or force could become dictatorial, like the hated monarchs of Europe. What is the citizenry supposed to do when, as now, all branches of the government seem to be complicit in violating our Fourth Amendment rights?
Could the free market help? We do have the interesting spectacle of the major internet companies-Apple, Google, Microsoft, Facebook, Yahoo, Linkedin, Twitter and AOL- demanding in full page ads in newspapers across the country that internet privacy be bolstered because “…the balance in America has tipped too far in favor of the state and away from the individual.”
However, many of these companies are also involved in massive data collection, although they are likely more aimed towards marketing than terrorism charges. In fact, these companies do not have to stop at metadata. Algorithms applied by Google, for example, routinely analyze the content of our emails for the purposes of targeting advertisements to particular users. Privacy concerns about Facebook in particular are numerous; Austrian student Max Schrems discovered that the site had collected and stored over 1,200 pages of information on his Facebook activity.
What power is there that could effectively defend the Fourth Amendment? The only power I can think of would be a political party—a party that remembers what the framers of the Constitution said about intrusive government, and why they said it.
Judge Leon, in his ruling against the NSA, said that James Madison would have been “aghast” had he seen “the almost Orwellian technology” in use by the NSA. We would need a party that cared about such Madison statements as:
“The means of defence against foreign danger have been always the instruments of tyranny at home.”1
Which party would insist on remembering such founding statements?
You’re way off if you guessed the Democratic Party, insofar as they are largely in agreement with President Obama. Even outside of the surveillance issue, the President’s record on civil liberties is generally rated as atrocious.1
If your answer is the Tea Party, you’re wrong again, because the Tea Party is not a party. It’s an unaffiliated, widely dispersed group of people who are aligned on some issues and in extreme disagreement on others; it has no confirmed platform or leaders.
If your answer is the Republican Party, you’re still wrong. The GOP has done next to nothing thus far about the Constitutional problems of the NSA’s far-reaching power. Rep. Amash’s bill was killed when 134 Republicans voted against it.
Could the Libertarian Party help, or a newly energized libertarian wing of the Republican Party? That’s more likely, considering libertarians’ consistent concern for civil liberties and respect for the Constitution as it is written. An identity crisis among the GOP, though, would need to be solved first. Republicans need to decide how high of a priority their supposed dedication to individual liberty and smaller government truly is. But this is a subject for another article to come.
1. The source of the quote is a speech at the Constitutional Convention, which is recorded here.
2. The American Civil Liberties Union’s executive director stated he was “disgusted” with the President’s behavior, while Conor Friedersdorf at The Atlantic, Steven Rosenfeld at AlterNet and Salon.com, Glenn Greenwald at The Guardian, The New York Times’ editorial board, and John Whitehead of the Rutherford Institute have all done a good job of documenting the administration’s violations.
Image credit to wccftech.com.
Doug Lasken is a retired school teacher for the LA Unified district, recently returned to coach debate, as well as a freelancer and education consultant. Read his blog at http://laskenlog.blogspot.com/ and write him at [email protected].