Today America woke up to find out that if they are a Verizon customer, their phone records are being collected on a daily basis and indiscriminately sent over to the NSA. They may not have done anything wrong, but that does not matter.
The secret Foreign Intelligence Surveillance Court (FISA) granted the order to the FBI on April 25, giving the government unlimited authority to obtain the data for a specified three-month period ending on July 19.
Under the terms of the blanket order, the numbers of both parties on a call are handed over, as is location data, call duration, unique identifiers, and the time and duration of all calls. The contents of the conversation itself are not covered.
It is no secret that I wasn’t thrilled with the passage of the Patriot Act under Bush and the government powers it broadened. I fully understand the need to protect this nation, and I am acutely aware of the national security threats we face every day. But it was one of those monsters very few legislators had the time or the inclination to read. They just wanted to look like they were doing something, and that something ushered in a slow, systematic erosion of our rights. And obscenely, the Bush administration had publicly expressed its opinion that individual rights are to be sacrificed at the altar of “national security.”
The Bush administration made no secret of its hopes that the Patriot Act would be broadly interpreted by the judiciary branch. In a letter to Senators Bob Graham, Orrin Hatch, Patrick Leahy, and Richard Shelby, Assistant Attorney General Daniel J. Bryant had the unmitigated goal to state:
The courts have observed that even the use of deadly force is reasonable under the Fourth Amendment if used in self-defense or to protect others… Here, for Fourth Amendment purposes, the right to self-defense is not that of an individual, but that of the nation and its citizens… If the government’s heightened interest in self-defense justifies the use of deadly force, then it certainly would also justify warrantless searches.
The majority of the Patriot Act was vaguely innocuous. It provided for more resources for our intelligence community, promoted information sharing, etc. But a few of the sections of this act were odious in nature, and were a precursor to what we are seeing today.
Prior to the September 11th attacks, a wiretap order targeted toward a specific person or group was confined to a particular computer or telephone. This is no longer the case. The new law allows a court to issue an order that is valid anywhere in the U.S. that is it may “rove” wherever a target goes, including a public library. Additionally, roving wiretaps and pen trap orders to include searches performed on the internet and keywords typed into browsers.
Under Section 216, a law enforcement agent or a government attorney can get a pen register, which records the telephone number of an outgoing call, or trap and trace order, which records the source of an incoming telephone call. To get such an order, the agent must simply certify to a judge that the information to be obtained is “relevant to an ongoing criminal investigation.”According to case law, information about who sent an email to whom and when holds no reasonable expectation of privacy much like the address blocks on a regular envelope or telephone numbers, which are necessarily provided to the telephone companies in order to complete a call. Much like the outside of an envelope, or a telephone number that’s dialed, envelope information on emails isn’t protected by constitutional privacy expectations.
However, this is where the constitutional challenges arise. While the sender of a letter can reasonably expect that the contents of a sealed letter will be private, unless no envelope is provided with the address block on the letter serving as an address device for the post office, and while a caller can reasonably expect that the content of his telephone conversation can be private, unless it’s transmitted over public airwaves……because the content of email messages is invariably contained on the same “page” as the “envelope information”, the courts could reasonably rule that the content of an email message is not constitutionally protected.
The Patriot Act also allowed law enforcement to share information with the intelligence community (CIA, NSA, etc.), and there’s no judicial review requirement to share wiretap and grand jury information, which effectively allows these intelligence agencies to keep tabs on ordinary citizens under the guise of “national security.”
So here we are…
These days, the FISA ruling has forced Verizon to hand over telephone records to the NSA, including communications between the United States and abroad” or “wholly within the United States, including local telephone calls.”
The standard for FISA approval is actually lower than regular courts, which require probable cause to grant a warrant in a criminal matter, and originally FISA warrants were only supposed to be used for those suspected of acting on behalf of a foreign power. Prior to the passage of the Patriot Act, FISA’s lax standards could only be applied if the actual purpose of the surveillance was the gathering of foreign intelligence. But Section 218 of the bill relaxed that standard to apply to a domestic criminal investigation if the gathering of foreign intelligence information merely constitutes a significant purpose of the surveillance. Not so much anymore.
Information is being collected on every Verizon customer in bulk – without reasonable suspicion of any individual or set of individuals and no specific target.
I fully admit there are things we don’t know. Maybe there is a specific target buried in all that data. But to collect intelligence on millions of American citizens looking for a needle in a haystack sounds like an egregious abuse of power to me.
I also doubt NSA employees are sitting around giggling at the phone sex you had with your significant other last night. Frankly, they have bigger things to worry about.
But if the government is capable of forcing a company to hand over your private information, it also has the power to use that information against you. It knows with whom you’re having conversations and for how long. Corrupt government bureaucrats can now not only target you – and any person that opposes their agenda – but also that person’s friends and family. Suspicion by association.
I don’t trust the government to have that information at its disposal. Do you?
ADDING SOME IRONY: George Orwell’s “1984” was published 64 years ago today.