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The NSA meta-data surveillance program is both illegal and unconstitutional: The cliff's notes version


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The NSA meta-data surveillance program is both illegal and unconstitutional: The cliff's notes version
Topic: Miscellaneous 11:14 am EST, Dec 18, 2013

It has become increasingly clear that many politicians who support the NSA meta-data surveillance program do not understand the substantive arguments against that program. Although the arguments have been made in numerous forums, I'm not sure that they have all been collected in a single brief. The purpose of this blog post is to summarize the key points in plain language that is easy to understand.

There are three key points.

1. The meta-data program is not authorized by law.

If Congress had intended to authorize the NSA to collect all business records everywhere, you'd think they would have written a statue that actually says that. However, Section 215 of the PATRIOT ACT only authorizes the collection of business records if those records are relevant to a terrorism or foreign intelligence investigation. If you ask most Americans if they think their personal phone records are relevant to a terrorism investigation, they are going to say no. Therefore, there are serious questions as to whether this statute actually authorized such a broad records collection program.

The counter argument that has been made in defense of the program is that any business record is relevant to a terrorism investigation if the reason that the NSA wants the record is because they are investigating terrorism. The argument goes that the purpose of the "relevance" limitation is to prohibit the NSA from collecting records for a project that has nothing to do with intelligence or anti-terrorism work. Its hard to imagine a project at the NSA that might involve the collection of domestic business records that has nothing to do with anti-terrorism or counterintelligence work, but according to the defenders of the meta-data program, the "relevance" language was intended to prohibit the use of this authority for those kinds of projects.

Frankly, if Congress intended to authorize the collection of everyone's meta-data, they should have written a statute that clearly said so.

2. The meta-data program violates the First Amendment to the Constitution.

The Constitution protects the right to freedom of association. Telecom meta-data is essentially a record of your associations - who you communicate with, when, and for how long. If the government keeps tabs on your associations and stores that information for years, this might deter your free exercise of your right to associate with other people. You might reasonably fear that your associations could come back to haunt you, and you might choose, therefore, not to communicate with someone that you want to communicate with.

This concern is rational even if the current government would not sanction you for the company that you keep. The records of your associations are kept for a long time, and if a future government decided they didn't like one of your associates, the records of your association with that person would be available for them to examine. Given the history in the United States of the use of government surveillance to target opponents of the Vietnam War, such as Martin Luther King, these concerns are not irrational.

It is unconstitutional for the government to operate a program that raises these kinds of concerns. I have not heard a response from the defenders of the NSA program on this point, and I don't think the program adequately ameliorates this concern as it is currently designed.

The program also raises concerns about Freedom of Speech, as technically, telecom meta-data contains records not just of who you associate with, but what content you've accessed. The most obvious example of this, as silly as it might seem, is the 1-900 phone sex line. If you use these services, your telephone meta-data contains a record of which ones, when, and for how long. This concern increases when we start talking about Internet meta-data. Email meta-data can tell you what email distribution lists a person is following. Full Internet meta-data can tell you what websites a person is reading. It is unconstitutional for the government to create a situation where people might rationally choose not to access content because they are afraid of the government keeping a record of it around for 5 years.

3. The meta-data program violates the Fourth Amendment to the Constitution.

The Fourth Amendment prohibits unreasonable searches and seizures. For many years, the courts have concluded that the Fourth Amendment does not prohibit the government from searching an individual person's phone records without a warrant or probable cause. Such a search is considered reasonable. The defenders of the NSA surveillance program have concluded that if its reasonable to search a single persons's phone records without a warrant, it must be reasonable to search everyone's phone records without a warrant, all the time. This is a huge leap of logic that many people don't accept. What is reasonable in isolation may be unreasonable in bulk. As technology has made the cost of bulk surveillance more affordable, it has made this question one that needs to be contended with.

In medieval England, people could be forced to endure a variety of searches that would today be viewed as unreasonable, such as searches of their homes by professional guilds, house to house searches for criminals, and searches of private homes by customs authorities. However, few people actually experienced these searches in practice, so there was little protest of this search authority. That began to change when the Tudor and Stuart Kings vastly expanded the use of government searches and a larger number of people were impacted. Eventually, this lead to the creation of the Fourth Amendment, as concerns about unreasonable searches by the Kings of England were heated in the crucible of the American Revolution.

Similarly, the government has enjoyed a vast authority to search business records that has gone unchecked because it did not impact most people. Now, it impacts everybody, and many people feel that this sort of dragnet collection of telecom meta-data is unreasonable.

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