Congress moved with crisis-driven speed after 9/11 to enact a law, the USA Patriot Act, to give the government new powers to detect, apprehend, and prosecute would-be terrorists. Among its provisions, section 215 authorized the FBI to seek a court order for the production of “any tangible things (including books, records, papers, documents, and other items” if related to “an investigation to protect against international terrorism or clandestine intelligence activities.”
A few members of Congress along with some civil liberties groups raised concerns about the open-ended investigatory power and the relaxed standard for using the power. In all the debate at the time, however, no one warned that section 215 would allow the government to vacuum up the records of Americans’ telephone calls numbers called, dates and times of calls on an ongoing basis with no individualized suspicion whatsoever.
Belatedly, we now know thanks to the whistleblowing ex-government contractor Edward Snowden that the supersecret National Security Agency (NSA) has been doing exactly that for more than a decade. Snowden’s disclosures have touched off a raging debate over, among other issues, the legality of the telephone records program.
Much of the legal debate has focused on the constitutionality of the program, but opponents of the program run into a Supreme Court precedent, Smith v. Maryland (1979). In Smith, the Supreme Court upheld on a 5-3 vote the installation of a “pen register” at a telephone company to record the telephone numbers dialed from a drug suspect’s phone. “No search,” the majority held, because Smith was deemed to have voluntarily disclosed the information to the phone company.
In his opinion for the majority, Justice Harry A. Blackmun noted what he called “the limited capabilities” of the pen register. Surely, he and the other justices at that time would be astonished to learn that technology now allows the phone company to collect and turn over to the government not just Smith’s telephone records, but everybody’s covering extended periods and on an ongoing basis.
Following Smith’s holding, the NSA’s telephone records program is no search either and thus untouched by the Fourth Amendment’s prohibition against “unreasonable” searches. Despite the raging debate, only one of more than a dozen judges to consider the issue Judge Richard Leon of the U.S. District Court in Washington, D.C. has ruled that the program runs afoul of the Fourth Amendment.
An antecedent argument has drawn less attention: whether the Patriot Act’s section 215 authorizes the mass collection of so-called telephony metadata at all. And in a thorough report issued last week [Jan. 23], the newly established Privacy and Civil Liberties Oversight Board concluded that it does not.
Following the mantra of the Supreme Court’s strict statutory constructionists, the 3-2 majority on the bipartisan board followed section 215’s plain text and found four reasons why it does not authorize what the NSA is doing (see p. 10). First, the board notes, “the telephone records acquired under the program have no connection to any specific FBI investigation at the time of their collection.” Second, records collected in bulk cannot be regarded as “relevant” to any investigation unless the word is redefined to be “circular” and “unlimited in scope.”
As a third objection, the board says the phone companies’ ongoing provision of call records to the government on a daily basis has no foundation in the statute. And, fourth, the statute authorizes only the FBI to obtain the records; the NSA is nowhere mentioned.
The three Democrats on the board including a former federal appeals court judge, Patricia Wald found unpersuasive the argument that Congress has sanctioned the program by reauthorizing section 215 twice after being informed of its operation. In separate statements, the two Republicans on the board former Bush Justice Department officials Rachel Brand and Elisebeth Collins Cook voted to continue the program despite what they called the “difficult” statutory issue. But they joined the majority in calling at least for some changes notably, retaining phone records for three instead of five years and limiting somewhat the scope of searches of the call records.
The board split along partisan lines as well on the value of the program. The majority said it found no single instance in which the program made “a concrete difference in the outcome of an investigation” or “a direct contribution to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.” Cook agreed the government had not demonstrated the value of the program, while Brand argued that the program was valuable because the telephone records were immediately available to investigators if needed.
That debate parallels the ongoing argument among experts on advocates about whether the NSA program could have prevented 9/11 if it had been in operation at the time. The best answer to that question appears to be that intelligence agencies would still have missed the clues and policymakers would have ignored the warnings anyway.
In defending the program, President Obama has minimized any risks to privacy: nobody is actually listening to those telephone calls, he stresses. The people he picked for the privacy board are not reassured. The former constitutional law teacher also bats away the Fourth Amendment concerns about the program. Apart from those policy questions, however, the privacy board makes a persuasive case that Congress never authorized this program at all.