Privacy Packs a One-Two Punch
By Tom Cushing
It’s been a noisy week in the generally muted world of privacy protection (quietude is not necessarily a good thing, when wheels are turning that you cannot hear).
First, US District Court Judge Richard Leon granted (but stayed) a preliminary injunction against big government’s so-called telephony metadata program, wherein it collects and stores comprehensive, five-year phone records of domestic calls made by most US citizens. Two days later, the privacy task force appointed reluctantly by President Obama in the wake of l’Affaire Snowden, set forth no fewer than 46 recommended changes (read: limitations, mostly) to the nation’s intelligence-gathering programs. The Prez has yet to act on those suggestions, some of which he has clearly opposed in the past.
Today’s column will focus on the perceptive and remarkably entertaining District Court opinion (okay, so the entertainment bar on such literature is set pretty low), and its take-aways. Next time, we’ll look at the lessons of the panel recommendations. Both of these interim outcomes demonstrate the overreach of an overzealous security apparatus: when left their own devices, such insular agencies can rationalize their way to obliterating the defining individual liberties of a way of life that they are fighting to defend.
The District Court case, Klayman v. Obama et al., also arose out of whistleblower Snowden’s revelations published in the Guardian newspaper. In June, immediately after disclosure of the NSA’s broad and indiscriminate collection of domestic phone records “metadata,” plaintiff Klayman sued, claiming the program constitutes an unlawful 4th Amendment search that violated his reasonable expectations of privacy. Klayman is founder of Freedom Watch, a public interest organization. He asked for a preliminary injunction – essentially suspending the program, pending a final outcome of his case.
Judge Leon granted the plaintiff’s request, but stayed its effect because it will certainly be appealed to higher courts. The opinion is notable for its boldness and clarity of reasoning on the legal merits – and also because it lays bare a pattern of government arrogance in both the conduct of the program, and the defense of it.
The NSA collects these data from phone service providers, supported by orders from the secret, so-called FIS Court. This court was established in the 1970s to provide some judicial oversight for surveillance decisions that would otherwise be the sole province of the Executive Branch. It is staffed by Federal District Court judges, working part-time in addition to their normal duties. It is, however, a private proceeding, and only the NSA appears — neither the public nor the parties, E.g., the phone companies to whom the orders are directed, are present. There is very limited appeal to a FIS Review Court, and thence to the US Supreme Court if the Justices choose to hear it, all “under seal” of secrecy.
Because the metadata only describe the calls (date, time, number called), the orders allow actual analysis of the vast database (you and I are in it) based on a suspicious “seed” number that can be matched against whom it called, and who they called, over a five-year horizon. Thus, as few as three numbers might be implicated, or as many as All of them – as where a Domino’s Pizza line appears as a call (because Everyone has made That call at least once in five years – Jackpot!).
The judge was unconvinced by government attempts to create a mis-impression of minimal intrusion: their witness indicated that the number of seeded numbers could be very small, and in any event were quite few in relation to the total records in the database. “It belabors the obvious to note that even a few million numbers is small when compared to the hundreds of millions the government has compiled.”
He also noted that the NSA has been chronically lax in administering program limits: “In January 2009, the government reported to the FIS Court that the NSA had improperly used identifiers that had not been approved…. After reviewing the government reports, Judge Walton of the FIS Court concluded that the NSA had engaged in “systematic non-compliance” since the inception of the program, and had also repeatedly made misrepresentations and inaccurate statements about the program to the FIS Court judges.” Further serious compliance problems were thereafter detailed. Has your confidence been inspired, yet?
The government’s fundamental problem throughout the case was the fact that its arguments kept meeting each other coming through the door. On the one hand, it argued that the metadata program is a comprehensive instrument of tremendous value in combating terrorism; on the other hand, it claimed that its intrusions were few and so trivial that plaintiffs effectively had no “standing” – no injury to worry about. The Boomer Judge noted that internal contradiction dryly:
“If the program worked the way the government claimed, it would be like omitting John, Paul and George from a historical analysis of the Beatles. A Ringo-only database wouldn’t make any sense, and I cannot believe that the government would create, maintain and so ardently defend such a system.” You can call that judgespeak for “crock.”
When the court reached the ultimate questions of whether the collection and use of these data constitute a “search” and one that offends the 4th Amendment, Judge Leon does a masterful job of distinguishing this half-decade long, sweeping dragnet from a non-searchly brief, individual phone tap case from the 1970s relied-on by the NSA (“the Smith case”). Duration and scope make this matter fundamentally different – for me, it’s like the contrast between a day’s fly-fishing in the creek and a whole season of ocean drift-net trawling. In an analogous case, the Supremes (US this time, not Motown), who will always allow warrantless surveillance of a vehicle in public, have objected to attachment of a GPS device to a car, in order to create a month-long record of its movements – at some point, the latter has clearly become a “search” for 4th Amendment purposes.
Finally, the Judge had to strike a balance between the interests of plaintiff and defense in concluding whether the metadata program’s exhaustive ‘search’ protocol is an unreasonable intrusion of privacy. In other words, is the national security ‘view’ worth the privacy intrusion ‘climb?’ Here, he found the government’s collection of five-year’s histories on everyone to be “a mosaic” and a deep intrusion, in the absence of any individualized suspicion of criminal behavior. The government’s counterbalancing interest, he opined, is also much more limited than the familiar “indispensable tool against terror” argument.
Per Judge Leon, what the metadata program is supposed to do is be faster than other investigative techniques – therein lies its real stated justification. But, the Judge concluded, there is simply no evidence that such speed has ever made any difference in protecting the nation:
“The government does not cite a single instance in which analysis of the NSA’s metadata actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive. None of the three episodes cited involved any urgency.” Accordingly, Judge Leon found the balance tipped in favor of the plaintiff, and ordered the government to prepare to shut down the metadata program, depending on the appeal outcome.
To me, this case is a textbook example of why we have public processes and checks-and-balances in our governance system. I do not believe that the NSA personnel are inherently venal. I do believe that, in their cloistered setting, they have become unduly enamored of their toys, and convinced of their own rectitude in extending the use of them. AND unmindful of the attendant risks to cherished ideals of the nation.
That’s dangerous – the system simply cannot properly rely on the private good will of its operators. Left to their own devices, even well-meaning patriots can be seduced into decisions that impinge of the most fundamental rights of the citizens they have sworn to protect. A balance must be struck, and it cannot be left to partisans to strike it properly, alone, behind closed doors.