Legal Opinion Forebodes Limitless Future for Surveillance

We’ve heard of Doctors Without Borders and Reporters Without Borders. What about Surveillance Without Borders? On Tuesday the FISA Court released the legal opinion explaining why the NSA’s “bulk collection” of phone calls is legal. The telephone data collection program has been stated to exist for the sole purpose of hatching terrorist plots, a point that is reiterated in the opinion. This NSA program also happens to record every phone call made by every American every single second of the day.

Legal scholars and constitutional lawyers are weighing in on the newly released opinion.

In her 29 page opinion, Judge Claire V. Eagan sided with the the Obama Administration’s chief defense of the program. The Administration has been arguing since the Snowden revelations that phone call metadata is not protected by the Fourth Amendment. According to this legal theory phone call metadata, unlike the content of the phone call, is not afforded a reasonable expectation of privacy as it is handled by third parties, the telecommunications companies. Quoting from the Supreme Court decision in Smith v. MaryLand Judge Eagan explains why phone call data doesn’t warrant Fourth Amendment protections: “Telephone users…typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does record this information for a variety of legitimate business purposes.” Basically the burden falls on the telephone subscriber to (dis)trust the phone company’s handling of their data. Leaks involving Verizon and AT&T’s cooperation with NSA record requests makes this responsibility a bitter pill to swallow.

Judge Eagan affirmed that the government can legally collect all calling records under Patriot Act provision 215. She argued that 215 gives the government legal authority to obtain business records considered “relevant” to investigations. Judge Eagan also noted that members of Congress were given occasion to be notified about how secret interpretations of the Patriot Act were being used to justify the phone call data collecting program prior to their vote reauthorizing the law.

Salon reported that Nate Cardozo – the Electronic Frontier Foundation attorney pressing lawmakers to make the process surrounding national security requests transparent – “said the court order is flawed because it assumes that all lawmakers were given the opportunity to learn the NSA was collecting and storing phone records in bulk.

Alex Abdo writing for the ACLU National Security Project criticized the ruling for providing no limits as to what kinds of pervasive and indiscriminate surveillance could also be upheld as constitutional.

Here’s the key passage from the opinion called into question:

Because known and unknown international terrorist operatives are using telephone communications, and because it is necessary to obtain the bulk collection of a telephone company’s metadata to determine those connections between known and unknown international terrorist operatives as part of authorized investigations, the production of the information sought meets the standard for relevance under 215

Abdo previews three future opinions used to justify secret surveillance programs that we may expect to follow from this logic:

1.)Because known and unknown international terrorist operatives are using email, and because it is necessary to obtain the bulk collection of an email provider’s metadata to determine those connections between known and unknown international terrorist operatives as part of authorized investigations . . . .

2.)Because known and unknown international terrorist operatives are engaging in financial transactions, and because it is necessary to obtain the bulk collection of a financial institution’s transaction history to determine those connections between known and unknown international terrorist operatives as part of authorized investigations . . . .

3.)Because known and unknown international terrorist operatives are using the Internet, and because it is necessary to obtain the bulk collection of an internet provider’s usage history to determine those connections between known and unknown international terrorist operatives as part of authorized investigations . . . .

What’s frightening is that Abdo’s cases aren’t farfetched conjectures. Through PRISM the NSA is already vacuuming up email metadata, email content, live chats and file transfers. The FBI has been using 215 to mine financial transaction records from financial institutions. And XKeyscore is the NSA’s weapon of choice when intercepting “nearly everything a typical user does on the internet”.

Once the courts rule that the planet’s most widespread surveillance programs and the laws justifying them constitutional, the government has been given carte blanche to implement radical forms of social control. Legal interpretations like Judge Eagan’s swiftly eliminate constitutional protections from government surveillance. Surveillance was once only legally authorized to be carried out on limited targets who demonstrated probable cause in criminal wrong doing. Now it is implemented in indiscriminate dragnet fashion on millions of unsuspected people and their “tangible things”. Surveillance was once approved in advance by a court on an individual basis. Now it’s approved with a rubber-stamp to conduct blanket record retrievals, sweeping data interceptions and massive eavesdrops.

As public debate about the dangers of Big Brother give way to the spectacle of enforcing international law in Syria (what was last week called war with Syria) the courts continue to embolden The Administration’s consolidation of totalizing surveillance. Legal recourse to curb sprawling surveillance is fading into the realm of non-option.