The Obama administration recently released a white paper which summarizes the supposed legal justification for the bulk collection of Americans’ phone records. Contained therein are some thoroughly nonsensical and leave the door open for massive invasions of privacy.
Meanwhile, it was revealed that the National Security Agency (NSA) can conduct warrantless searches for the phone calls and emails of Americans and that the collection of data expands far beyond what was previously admitted to.
“There is no direct authorization for the Associational Tracking Program in section Patriot Act section 215,” writes Cindy Cohn, legal director and general counsel for the Electronic Frontier Foundation.
The statute includes no authorization of the NSA’s mass collection and analysis of the Americans who are neither suspects nor targeted individuals.
Furthermore, the statute does not authorize such collection on a continuous basis or the practice of requiring records that have yet to be produced, as the court order did in requiring future records from Verizon.
“The plain meaning of the statute fails to reach their breathtaking and unprecedented activities and it isn’t even ambiguous about it,” Cohn writes.
The Obama administration’s legal argument then becomes quite troubling.
On page 16 of the white paper, the Justice Department argues that they can order prospective information because “nothing in the text of the statute suggests that FISC [Foreign Intelligence Surveillance Court] orders may relate only to records previously created.”
Cohn notes that this kind of argument was addressed by Justice Antonin Scalia in the 2001 Supreme Court case, Whitman v. American Trucking.
Congress “does not, one might say, hide elephants in mouseholes,” Scalia wrote.
Yet the Justice Department apparently has no problem stretching the meaning of words, as they did when redefining “imminent” in an attempt to justify targeted killings.
The Obama administration did “some fancy legal dancing — stretching terms like ‘tangible things’ and ‘relevance’ beyond recognition,” Cohn wrote.
The administration claims that, “’relevance’ is a broad standard,” so broad in fact that they claim that it “permits discovery of large volumes of data in circumstances where doing so is necessary to identify much smaller amounts of information within that data that directly bears on the matter being investigated.”
As Spencker Ackerman notes, they argue that “relevance” can “include the ‘reasonable grounds to believe’ that when all the data is collected, ‘when queried and analyzed consistent with the [surveillance] Court-approved standards, will produce information pertinent to FBI investigations of international terrorism.’”
Furthermore, “tangible thing” now means anything from a phone number to the length of a phone call, despite the fact that such data is not, in fact, a “tangible thing.”
“There is little question that in enacting Section 215 in 2001 and then amending it in 2006, Congress understood that among the things that the FBI would need to acquire to conduct terrorism investigations were documents and records stored in electronic form,” the document claims.
In the document, the government argues:
[…] there is an exceptionally strong public interest in the prevention of terrorist attacks, and telephony metadata analysis can be an important part of achieving that objective. This interest does not merely entail “ordinary crime-solving,” King, 133 S. Ct. at 1982 (Scalia, J., dissenting), but rather the forward-looking prevention of the loss of life, including potentially on a catastrophic scale. Given that exceedingly important objective, and the minimal, if any, Fourth Amendment intrusion that the program entails, the program would be constitutional even if the Fourth Amendment’s reasonableness standard applied.
Mike Masnick of TechDirt pointed out that if this argument is taken to its logical conclusion, it would be quite a slippery slope, aside from the fact that “there has yet to be any evidence presented that Section 215 did anything at all to prevent terrorism.”
“But, even more to the point, that justification is the justification for wiping out the entire 4th amendment. There’s an exceptionally strong public interest in stopping all kind of negative activity, so why not place a video cameras and a recorder in every private room in the country?” Masnick wrote.
The government goes on to argue:
Moreover, information concerning the use of Section 215 to collect telephony metadata in bulk was made available to all Members of Congress, and Congress reauthorized Section 215 without change after this information was provided. It is significant to the legal analysis of the statute that Congress was on notice of this activity and of the source of its legal authority when the statute was reauthorized.
Yet many individuals in Congress claimed they were unaware of the extent of the program and continue to be kept in the dark despite attempting to obtain more information.
To make matters even worse, as Masnick points out, this argument comes down to essentially claiming that “because Congress did not explicitly tell us to stop collecting all data, we take that as implicit permission to collect all data.” Yet if they were not actually aware of the extent of the data collected, they couldn’t have specifically blocked such collection.
Even Rep. Jim Sensenbrenner (R-Wis.), the author of the Patriot Act, has said he is “extremely disturbed” by the administration’s distortion of the Act’s intent and does “not believe the released FISA order is consistent with the requirement of the Patriot Act.”
“How could the phone records of so many innocent Americans be relevant to an authorized investigation as required by the Act?” Sensenbrenner asked.
Suffice it to say, the white paper is riddled with problems, some of which may be addressed in future articles here at End the Lie.
However, perhaps the most significant aspect of the release of the paper is that the government’s legal rationales are finally out in the open.
This leads Cohn to note that the EFF hopes “to finally be able to fight this out in the place where competing interpretations of federal statutes should be decided: in the public federal courts where both sides get to argue.”
Currently a large, diverse coalition of groups is suing the NSA to challenge the Associational Tracking Program and the Jewel v. NSA case is still pending, as it has been since 2008.
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