Congress couldn't draw back the surveillance dragnet. But the justices might.
- By Shane Harris
Shane Harris is a senior staff writer at Foreign Policy, covering intelligence and cyber security. He is the author of The Watchers: The Rise of America's Surveillance State, which chronicles the creation of a vast national security apparatus and the rise of surveillance in America. The Watchers won the New York Public Library’s Helen Bernstein Book Award for Excellence in Journalism, and the Economist named it one of the best books of 2010. Shane is the winner of the Gerald R. Ford Prize for Distinguished Reporting on National Defense. He has four times been named a finalist for the Livingston Awards for Young Journalists, which honor the best journalists in America under the age of 35. Prior to joining Foreign Policy, he was the senior writer for The Washingtonian and a staff correspondent at National Journal.
Now that the House of Representatives has voted down an amendment that would have significantly restricted what information the National Security Agency can collect about Americans, the best hope of curtailing the spy agency’s powers lies with the courts. And while NSA critics have failed to rein in the eavesdropping agency through legislative action, they may have more luck with the third branch of government — thanks to a leaked classified document, a rare bit of good fortune for a leading civil liberties group, and a sympathetic justice of the Supreme Court.
The fact that more than 200 lawmakers voted against a key NSA collection program, and one authorized by the long-controversial Patriot Act, represents a victory of sorts for surveillance critics. There has rarely been such a pronounced opposition to surveillance authorities, and the fact that the Obama administration had to mount a full court press to preserve the program, and still only eked out a narrow win, may give opponents some hope that a legislative effort could be mounted again with a different result. But there is no clear next step legislatively. No bill or amendment on the table. Yet there is a path forward on the judicial front.
Challenges to the NSA’s surveillance programs have historically failed in large part because no one has been able to prove he had his communications scooped up in the agency’s electronic dragnets. That information is an official secret. The American Civil Liberties Union, one of the most stalwart opponents of the NSA’s broad surveillance authorities, failed to challenge the agency’s operations in the Supreme Court because of this Catch-22. It couldn’t prove it had been spied upon, even though the government acknowledged — generally — that such spying does occur.
But now, classified documents released by the ex-NSA contractor Edward Snowden leave no doubt that at least one telecommunications company, Verizon Business Network Services, has handed over bulk telephone metadata to the NSA under a court order.
The key for a new challenge by the ACLU, which it filed last month, which it filed last month in U.S. District Court, is that it’s a customer of Verizon Business Network Services. Not just Verizon, but this particular division of Verizon. This is the closest thing the group has had to a smoking gun, and conceivably it could be sufficient to establish legal standing to bring the lawsuit. The case could end up in the Supreme Court.
But to succeed, the ACLU — or any challenger — will have to convince jurists that the long-standing legal treatment of metadata is outdated and needs to be changed.
The NSA’s collection of this data is enabled by a 1979 Supreme Court ruling that telephone numbers are not content, and therefore aren’t protected by the Fourth Amendment’s prohibition on unreasonable searches. A telephone customer willingly hands over his number to the service provider whenever he places a call, and therefore cannot expect that the information is private, the court found.
But at least one justice has indicated it may be time to rethink this analysis, in light of the fact that metadata is not only ubiquitous today, but can be exceptionally revealing of an individual’s communications patterns, his social networks, and his movements.
"This approach is ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks," Justice Sonia Sotomayor wrote last year in concurrence with a ruling that said law enforcement agencies must obtain a warrant before placing a GPS tracker on a suspect’s car. The question of metadata wasn’t before the court, but the balance between privacy and security was.
"I, for one, doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year," Sotomayor wrote. "But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy."
The court may be primed for a reinterpretation of its own rulings on metadata, which can be even more revealing than content. But civil libertarians may not want to pop the champagne too quickly.
In that 2012 GPS case, the court also left the door open to allowing broad surveillance with a different kind of technology: drones.
The police may need a warrant to put a tracking device on a suspect’s car. But it’s not at all clear that they couldn’t watch that individual walking down the street using a camera on a remotely piloted aircraft.
"It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy," Justice Antonin Scalia wrote in a majority opinion. But that wasn’t the question before the court. The ruling left open the possibility that persistent aerial surveillance of public places may, indeed, be constitutional.
Congress has shown little appetite for clarifying these issues, and has reliably voted to expand, not limit, the surveillance powers of the executive branch. President Barack Obama’s position on the issues is not only a continuation of his predecessor’s, but a change from the views he held as a candidate.
In the summer of 2008, amid another debate over the proper limits of the NSA’s spying powers, then-Sen. Obama voted in favor of a bill to allow the interception of phone calls and emails without individual warrants. He had initially opposed the changes, along with a provision that granted legal immunity to telecommunications companies that participated in government intelligence gathering. But as it became clearer that he would secure the Democratic nomination for president, Obama changed his stance.
"Given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay," Obama said at the time, making "a firm pledge that as president, I will carefully monitor the program."
It’s not clear how carefully Obama has monitored the NSA, but he and members of his administration have successfully, and vociferously, defended it in Congress. The third branch of the government is now the last, best chance for any attempt to reign in the intelligence agency and change the legal underpinnings of how it operates.