Thanks to AWOL whistle-blower Edward Snowden, 2013 was the Year of Big Brother. We learned for the first time that the National Security Agency routinely tracks our phone records, emails, and web work. But if you can’t decide how you feel about that, if you can’t envision the right balance between security and privacy, don’t feel bad. Because the guys in robes have given us very little guidance.
How can we citizens get clarity about the NSA’s domestic spying (officially known as “telephony metadata”) when the federal judges entrusted to rule on such weighty issues can’t even agree on what to think?
This month, within a span of 11 days, we’ve had two diametrically different rulings on the same surveillance program. First, U.S. District Judge Richard Leon derided the NSA’s behavior as “Orwellian,” a “significantly likely” violation of the Fourth Amendment’s ban on unreasonable government searches and seizures. Yet last Friday, U.S. District Judge William Pauley ruled that the NSA is wielding a “vital tool” in the war on terrorism, a program that, despite its seemingly indiscriminate sweep, does not violate the Fourth Amendment.
And just to scramble our brains further, consider this: Leon, who dumped all over the NSA program, was appointed to the bench by George W. Bush. Pauley, who hailed the program’s ubiquity (“this blunt tool only works because it collects everything”) was appointed to the bench by BIll Clinton. Clearly, this issue can’t be resolved along predictably partisan lines.
Pauley says the NSA program “vacuums up information about virtually every telephone call to, from, and within the United States” – and says that’s a good thing. Leon references that same vacuuming, and says it’s a bad thing. Pauley says that if only the NSA had been vacuuming in this manner prior to 9/11, it might have prevented 9/11. But Leon says there’s no evidence that vacuuming has prevented anything: “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.”
Ever go to a movie with a friend, and discover, as you’re leaving the theatre, that your friend’s reaction to the film – same film, same information, same amount of scrutiny – is the inverse of yours? That he or she hated what you loved, or vice versa? You see my point.
Both judges look closely at a 1979 high court decision, Smith v. Maryland, that involved the Fourth Amendment – but used it to buttress their opposite conclusions about the NSA. Back in ’79, the Supremes ruled that a robbery suspect’s right to privacy was not violated when the authorities tracked the phone numbers he had dialed. Last Friday, Pauley called Smith a “bedrock” ruling that absolves the NSA: “An individual has no legitimate expectation of privacy in information provided to third parties.”
But Leon said the Smith ruling has been rendered obsolete by contemporary digital reality. Today’s “almost Orwellian technology,” he said, is “unlike anything that could have been conceived” back in 1979. It’s one thing to track a robbery suspect’s phone numbers in the disco era; it’s another thing to sweep up the metadata of multimillion innocent citizens. Or, as Leon argued, “It’s one thing to say that people expect phone companies to occasionally provide information to law enforcement; it’s quite another to operate what is effectively a joint intelligence-gathering operation within the government.”
This judicial Rashomon is surely frustrating. But whatever you may think of Snowden – hero? heroic traitor? traitorous hero? – at minimum he has triggered a worthy public debate. Through two presidencies, the government had stretched its tentacles in secret, preferring that we not know what was going on. If not for Snowden, we might still be stuck with the bald-faced lie uttered last March on Capitol Hill. That’s when Sen. Ron Wyden asked U.S. intelligence chief James Clapper, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” And Clapper replied, “No, sir. Not willingly.”
Eventually, after all the lower-court conflicts are exhausted, the U.S. Supreme Court will be compelled to render the definitive word on the NSA program. But for now, these lines from Judge Leon, the Bush appointee, keeps resonating in my head: “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data….James Madison, who cautioned us to beware ‘the abridgement of freedom of the people by gradual and silent encroachment by those in power’ would be aghast.”
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