Exclusive: Top secret court order requiring Verizon to hand over all call data shows scale of domestic surveillance under Obama administration
I’m becoming very irritated with many Republicans and a few respected conservatives regarding this NSA data mining scandal. I’ve heard a range of arguments in support of the NSA’s telecommunications metadata surveillance, such as the following examples:
Karl Rove asserts on Fox News that the government has a legitimate right to conduct telecommunications metadata surveillance and that such surveillance is necessary for prosecuting the war on terror.
Representative Mike Rogers (R-MI) claims that a terrorist attack had been prevented using this practice.
Senator Saxby Chambliss (R-GA) dismisses the significance of the media leak because metadata surveillance has been standard operating procedure for years and Congress has been fully aware of it.
Senator Lindsey Graham (R-SC) essentially argues, according to Allahpundit, “If you’re not doing anything wrong, you should have no objection.”
Even Sean Hannity on his radio show and Charles Krauthammer on Fox News explained that this NSA overreach bothers them particularly because the Obama administration is untrustworthy, given the context of the other ongoing scandals such as the targeting of conservative tax exempt organizations by the IRS and the monitoring of the Associated Press and Fox News’ James Rosen.
Dennis Prager contends on his conservative radio show that it’s a non-issue because the perceived security benefits outweigh the perceived liberty costs.
There is no inalienable right to privacy. The Supreme Court recognized this in Smith v. Maryland, which found that no expectation of privacy exists concerning information exchanged voluntarily through a third party communications provider. Essentially, telecommunications metadata is not inherently protected because the communicator exchanges it voluntarily with the communications provider. That metadata may be stored at each party’s discretion based on its non-private nature. The same court case, however, also found that the monitoring of metadata does not constitute a “search” due to the non-private nature of metadata.
The Stored Communications Act of 1986 seems clear that a warrant is necessary in order for the government to seize communications records. The Communications Assistance for Law Enforcement Act of 1994 broadens this authority by requiring either a warrant or a court order.
The “Pen Register Act” provision of the Electronic Communications Privacy Act of 1986 has been interpreted through the PATRIOT Act to require a court order related to an ongoing investigation in order for telecommunications metadata to be monitored by the government. Whether a warrant is necessary is speculative, though this is a moot point because the telecommunications companies complied with the FISA court order (Foreign Intelligence Surveillance Act) compelling them to share their metadata records with the NSA.
All of these arguments miss the point.
Whether the privacy rights of individuals have been violated – or, as the Obama administration contends, how the liberties of citizens should be balanced against national security (which I think is a bogus argument) – is irrelevant. This should be an issue primarily of constitutional, limited government, and this is where conservatives have made missteps.
The Fourth Amendment reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
It’s important to point out that a warrant is the burden of law enforcement. The focus of the Warrants Clause is neither the “search” nor the “seizure” but rather the warrant itself. The Fourth Amendment is SILENT about which law enforcement actions require a warrant.
The Fifth Amendment reads:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Conservatives should recognize that the coerced sharing of telecommunications metadata constitutes the seizure of private property for public use. Metadata stored by the communications provider, though not constitutionally protected from disclosure based on the reasonable expectation of privacy, certainly is the private property of that communications provider.
This issue does not concern the judicial power of subpoena because the government uses the metadata to monitor potential communication patterns in counter-terrorism strategy under executive branch authority, not to prosecute terrorists under judicial branch authority. The metadata is not being gathered for the purpose of testimony in court.
Because of the absence of just compensation to the communication providers for their coerced cooperation, and especially considering the punitive repercussions of divulging the surveillance practices to the public, the government’s seizure of privately-owned metadata deserves to be subject to warrant, requiring probable cause. The government has not even demonstrated reasonable suspicion to justify monitoring millions of law abiding citizens not involved in a criminal investigation.
Therefore, the vast, non-specific and indiscriminate warrantless seizure by the government of millions of American citizens’ telecommunications metadata constitutes a violation of the Fourth and Fifth Amendments.
As the Obama administration has tried with both this NSA scandal and the Associated Press scandal, any attempt to frame this issue as calibrating the balance between individual liberty and national security is simply a distraction from the constitutional question. Besides, many Americans philosophically reject the lie that security is inversely related to liberty and are justifiably skeptical of authoritarianism under the guise of “national security.”
But if we are to play the victim game, I sympathize with the communication providers who have been persecuted at cost to their businesses. And given the context of the IRS scandal, what assurance do individual citizens have that the NSA is implementing the proper safeguards to ensure that metadata related to our communications activities is safe from abuse?
It doesn’t matter, Dennis Prager, that no American non-terrorist citizen has reportedly been abused by this practice. What matters is that we are a constitutional republic. That is, we are a nation of laws regarding how to govern as well as how to be governed. A government that exceeds its scope is guilty of breaking the very law that authorized it.
The United States government must honor its contract with the American people, and it must respect the limits placed upon it.