NEWS BLOG (WSAU) It’s unconstitutional. Plain and simple. The meta-data that the National Security Agency gathers about our cellphones and emails cannot be squared with the Fourth Amendment.
My opinions about this are extra-judicial. Court rulings that uphold the government’s program of gathering the data on which phone numbers I call, how long I talk to someone on those numbers, and where I am when I make those calls are incorrect. Courts get things wrong. The judicial system, from time to time, reverses itself. My feelings aren’t based on those byzantine legal opinions that normal people don’t understand. It’s based on the very clear language of the Constitution:
“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.”
“Your papers” – which meant writings, letters, journals and the like in the framers' time, indeed means emails and phone calls in current times. If the government has a suspicion about me, they can go into court and get a warrant.
Judge Richard Leon, who ruled the data gathering is unconstitutional, described the NSA’s program as “Orwellian”. And his written opinion included a detailed explanation of the ‘three hops’ standard – where phone data can be gathered three calls removed from the line that’s under surveillance. Judge Leon says a suspected terrorist might call Domino’s Pizza. Then every call that comes into the Dominos phone line is fair game for data-gathering, and every call that’s made from those phones is in-play too. That’s a ripple effect that covers millions of numbers and calls.
I consider the legal issues here very cut-and-dry --- not at all complicated. It’s fascinating that our government runs roughshod over rights that are suddenly deemed inconvenient in a post-911 world.
What's interesting is what’s happened since the ruling on Monday. Cellphone carriers and technology companies are quickly coming to their senses, and are being less cooperative with the NSA’s requests. The Justice Department has already asked big phone companies to voluntarily store the meta-data that the government may no longer gather while appeals are pending. The phone companies have said ‘no’. Earlier this week President Obama met with executives from 15 tech companies, including Google, Yahoo! and Facebook. He wants to map out ground rules for data-snooping. They’re not interested in a deal or an agreement. They’re buying time for the legal appeals to play out. (Some of those companies have their own legal exposure about data mining. Google, for example, gets your consent to scan the words you type when you open a gmail account. But there’s a grey area about gathering data when someone from private email sends something to a google user. There are to terms-of-use for people who send messages into the gmail system --- and Google also scans those emails and gathers marketing data on those senders.)
This case is ultimately headed to the U.S. Supreme Court, where they’ve already upheld the framework of the secret FISA court. And, don’t kid yourself, even if the Supreme Court gets this one right, the mindset of the NSA is that national security and the data needed to carry out that goal is beyond the reach of politicians and the judges. They’ve already tapped into phone and data lines and are doing their work with or without corporate cooperation. The importance of the court decisions are whether this is outside the bounds of law. I’m not so naive to think that it’s going to stop.
Image: Wikicommons.com mainframe computer; DEC PDP-6. Gordon Bell and Alan Kotok at PDP-6.