History admonishes us that the law has to be maintained like a carefully tended garden. Even when a law has undergone a thorough modernization less than ten years ago, when it deals with critical national security issues directly affected by technology — as does the Foreign Intelligence Surveillance Act in regard to terrorism — it needs to be evolved even more often.
The collision of technology’s limits and our constitutional rights made for a very bad week for the National Security Agency. Two events — one, a U.S. district court decision and the other the report of a presidential committee on NSA’s activities — combined to put in doubt NSA’s ability under the Constitution to continue its massive data collection.
The second event, the report by President Obama’s advisory committee on NSA, is being advertised as a rebuke of the NSA’s practices, but it really was not. The panels’ 46 recommendations would — if adopted or enacted by Congress — do very little to change what NSA’s been doing for the past six years or so.
The panel said that telephone “metadata” — the record of what telephone calls were made and received charted by every telephone number — should be kept in private hands, not the government’s. It recommended that the command of U.S. Cyber Command and NSA should not reside in a single official and that a “Public Interest Advocate” be created by Congress to oppose the government’s requests for search authorities before the Foreign Intelligence Surveillance Court. The rest of its recommendations would require higher-ranking government officials to approve many actions and generally re-arrange what is currently going on.
In short, the committee didn’t produce anything useful and what it did recommend may be harmful. The court’s decision is quite the opposite.
U.S. District Court Judge Richard Leon issued a 68-page decision that granted a preliminary injunction against NSA’s metadata collection on the basis that the data collection is a Fourth Amendment search and that, given the changes in technology and society since the Foreign Intelligence Surveillance Act was enacted, NSA’s actions are probably unconstitutional. (Because this is an injunction case, the court couldn’t make a final ruling on the merits at this stage, and because of the national security implications, the judge immediately stayed his order pending appeal.)
Leon’s decision is of the sort that happens when Congress falls down on the job, failing to change the laws that become outdated for one reason or another. Several learned conservatives — such as former attorney general Michael Mukasey and my friend Andy McCarthy — have written vehement criticisms of Leon’s decision, but I think they’ve gotten it a bit wrong.
The plaintiffs in the two cases affected by Leon’s ruling allege that their 4th Amendment protections against unreasonable search and seizure are violated by the government’s gathering of the metadata on what is probably every telephone in the United States. (The government hasn’t admitted that it gathers the data on cell phones, but the court presumes it does.)
Leon’s ruling turns on two points the first of which is in two parts.
First, that society has changed so greatly in the past four decades that people’s usage and dependence on their telephones — particularly cell phones — has heightened everyone’s expectations of privacy when they use one. When FISA was first enacted in 1978, says Judge Leon’s opinion, people sent text messages by writing them down, putting a stamp on them and dropping them in a mailbox. Cell phones — as any television cop show tells us — can be used to trace people’s location, who they called and talked to, even their shopping habits.
That’s not supposed to be done to U.S. citizens under FISA, but no one in government is willing to say that it isn’t being done.
The FISA court can authorize searches for foreign intelligence data — the phone records of agents of foreign powers in communication with their bosses and with other Americans — by pen registers and “trap and trace” devices, i.e., to record data on outgoing and incoming calls without recording the calls themselves. FISA can also be used to get authorization for physical searches. And it can go farther, authorizing the interception of electronic communications — listening in to phone calls and reading emails and text messages — of foreign agents including terrorists inside and outside of U.S. territory.
That fact that pen registers and trap and trace devices have been held constitutional by the Supreme Court, and that the fifteen judges who have served on the FISA court in recent years haven’t ruled against the constitutionality of NSA’s metadata campaign, is enough for some of my colleagues to conclude that Judge Leon is wrong, and that his opinion will have no lasting effect. But this is how the law has always evolved. A lower court risks being wrong and thus forces higher courts, including the Supreme Court, to rule on the case.
Right now, FISA is being used to require the telephone companies to surrender the metadata to NSA so that it can use its massive databank to search the information. It authorizes itself to do so using criteria derived from “reasonable, articulable suspicions” of terrorist activity.
Though it’s apparently gathering metadata on every U.S. telephone and cell phone, the government is supposed to be using “minimization procedures” to expunge information gathered on U.S. persons — basically every U.S. citizen and those who are otherwise in the U.S. legally — but it isn’t. It’s keeping that information permanently.
The second half of the first part is that the government’s only rationale for collecting all the information is that its technology is limited. If it doesn’t collect all of the metadata, says the judge’s opinion, the government says that it will take it too long a time to get the results on individual telephones and cell phones. Too long, perhaps, to stop a terrorist attack.
As Leon wrote:
The Government obviously wants me to infer that the NSA may not have collected records from Verizon Wireless.… Curiously, the Government makes this argument at the same time it is describing in its pleadings a bulk metadata collection program that can function only because it “creates an historical repository that permits retrospective analysis of terrorist-related communications across multiple communications networks, and that can be immediately accessed as new terrorist-associated identifiers come to light.”
The government alleges that not only did the government succeed in stopping terrorist attacks because of its ability to collect metadata, (and these are my words, not the judge’s) it insists that by limiting its database to only those telephone records that it knows are used by terrorists or their supporters, its database couldn’t function to give it the critical information it needs.
The speed that is critical to success, says the government, would be precluded by excluding the telephones of innocent Americans from the database. That is a failure of technology, not an authorization to violate the 4th Amendment. And if it were true, that would be a critical fact that should give any judge pause. It did, which gets us to the second important part of Leon’s opinion.
His decision goes to some lengths to demonstrate that the government failed to prove its case on the efficacy of the metadata database. He writes:
Yet, turning to the efficacy prong, the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature. In fact, none of the three “recent episodes” cited by the Government that supposedly “illustrate the role that telephony metadata analysis can play in preventing and protecting against terrorist attack” involved any apparent urgency.
If the government can’t show that there is an urgency so great in collecting and using the metadata, that only by doing so can it protect against terrorist attacks, there’s no rationale for continuing to do so. If the metadata collection and banking isn’t effective in protecting against terrorist attack, there’s no justification for violating the 4th Amendment.
Part of the problem may be that NSA decided to keep secret events that would have proved its argument. NSA’s culture of secrecy, which has served America well, may require more openness.
Weighing against Leon’s opinion is the bulk of established law. As I’ve argued here often — in defense of NSA’s actions — people don’t own the metadata that NSA records. The telephone companies do. When FISA first authorized pen registers and trap and trace devices, that was why they passed constitutional muster. It still says the same thing, but times — and society — have changed.
If Congress were doing the job it was elected to do, neither Judge Leon’s decision nor this column would have been necessary. Congress would — should, could — deal with all of these issues and modify the law to resolve a dangerous conflict between the Constitution and the government’s ability to protect us.
The government couldn’t provide evidence of one single example of an attack thwarted by the metadata program. There are so many other expensive government programs that don’t do anything to increase our security against terrorism or the acts of other foreign enemies. After six or seven years, it’s time to stop what doesn’t work.