May 11, 2014 § 2 Comments
I don’t have any important information to convey this afternoon. I just need the disciplinary diversion involved in writing something to avoid focusing on sad reality. My Beverly is nearing the end of her life and, having spent all but the first six years of my life in some kind of relationship with her,, I have no idea how I will proceed without her. It is like contemplating the necessity for the surgical amputation of my legs or my eyes. I’m sure I could survive it, but I am baffled about what that would be like.
The Sterling Absurdity
Unless you have been living in a cave, your brain has been saturated with breathless accounts of the mouthings of Donald Sterling, the pathetic racist cracker who owns the LA Clippers NBA basketball franchise. The hilarity of this episode did not occur to me until I heard his explanation for his taped comments to a young black woman with whom he apparently had, or wanted to have, a sexual relationship. The relationship ended on terms that did not please her so she published one of their conversations in which he complained about her attending Clippers games accompanied by black men.
I found that news to be of limited interest: Surprise, surprise: This guy’s a racist.
A few days later, however, when he decided to defend himself, I was grateful for his exposure as a living punch line in a pretty funny joke. Here is an 80-year-old guy, who looks like death warmed over, claiming he was jealous of the black men who were squiring “his girlfriend” around. He said his comments were not racist; they were an effort to persuade her to have sex with him. In other words, this was his idea of effective foreplay.
Now I don’t claim to be expert on the subject but a couple of things seem obvious to me: First, if old Don really wanted the black girl to go to bed with him, I don’t think it was a wise move to harangue her about associating with black men. And second, and this is what was really funny to me, is it possible this guy really thought that whatever relationship he had, or hoped to have, with this young, reasonably attractive woman had anything to do with his ideas, his personality or his opinions? It must be obvious to everyone except silly Donald Sterling that if he wanted to have sex with a young woman, regardless of her color, the only thing in his pants that he might wave around was his wallet; forget about foreplay and seductive conversation.
Now, I know that I may offend someone because I find this funny. I know the talking heads on TV are engaged in serious discussions about the propriety of having one’s private conversations made public; about this evidence of persistent racism in our culture; about the tension between private property ownership and offensive racism; etc. etc. etc. I assume we will be treated to months of this discussion and, probably, to lengthy litigation. I’m ok with that. My opinion is that the proper people to analyze this matter are Jon Stewart and Stephen Colbert.
The Elephant and The Cell Phone
I include a link to one of the funniest online videos I have ever seen. It has no political, economic or sociological significance. I offer it only because it is both amusing and astonishing. It is a short drama in two acts. Be sure to continue to Act II. The Elephant
Business As Usual on Wall Street
A day or two ago I became aware of a blog called “Naked Capitalism”. It is managed by a veteran of Wall Street who now seems to take pride and glee in a sort of a “tell all” blog. Imagine what would happen if Carl Rove had a “Paul on the road to Damascus” experience and decided to establish a blog exposing what really happens on the political right-wing.
A recent post describes a speech by Andrew Bowden, a SEC agent, to a meeting of private equity managers and their investors. Private equities are entities set up to manage money invested by rich people. The managers do not invest in publicly traded stocks. They invest in private companies they buy and sell. Their investors agree, when they turn over their money, that they will not involve themselves in the managers’ decisions. The arrangements, as they are described in the blog post, remind me of the relationship between a lawyer and a client: The lawyer represents the client, but he or she does not allow the client to control the lawyer’s decisions and tactics.
The difference is that a lawyer’s job is limited to protecting and advocating the client’s legal rights and interests. The client is entitled to complete access to all information concerning the lawyer’s billable expenses. The lawyer can be fired at any time and so can the client. The private equity manager, by contrast has a duty to make the investor as much money as possible. In practice, there is little transparency between the manager and the investor. Until 2012, when Dodd-Frank was enacted, these arrangements were unregulated. Mr. Bowden’s speech described what the SEC found when it began its oversight. It is an eye-opener.
About fifty percent of the private equity managers investigated were found to be guilty of theft, fraud and various kinds of dishonesty. Mr. Bowden’s speech described some of the nefarious practices and it must have been an emotional experience for some of the investors in the audience. The obvious conflict of interest problems seem to be so prevalent as to be commonplace, a sort of “everybody does it” thing.
Did that “fifty percent” sink in? In other words, when these presumably sophisticated rich people decide to turn their money over to one of these private equity entities, there is a fifty-fifty chance they are trusting a fortune to a con man or a thief. Would you shoot craps with someone if you understood there was a fifty-fifty chance the dice were loaded? I regard this information as additional evidence to a long-held suspicion of mine: There is little correlation between intelligence and the acquisition of money.
Here is a link: Private Equity
It’s Sunday morning and I haven’t posted this stuff. I just watched “Reliable Sources”. The host interviewed Mike Rogers about his imminent departure from Congress to become a radio talk show host. He has crafted a political career around being the Congressional liar-in-chief concerning the government’s intelligence practices. In multiple appearances on Sunday talk shows, he claimed that Edward Snowden’s disclosures endangered the lives of patriotic Americans around the world; that the NSA’s indiscriminate spying on innocent Americans thwarted many serious and deadly threats of terrorist assaults on the U.S.; that the collection of telephone numbers of every American for the past seven years did not involve access to the content of telephone conversations except for carefully limited instances; etc. etc. etc.
No matter how many times these claims were found to be false; no matter how many times neither he nor anyone else, when challenged, failed to offer a single fact to back up Rogers’ claims; he persisted in spreading his lies. It makes sense for him to become a radio talk show host. He will now be paid big bucks for lying for a living. He told the Reliable Sources host that he plans to use his show to interview present and former NSA officials. So, we will now have these lies amplified through a tag-team of liars.
I think this NSA problem poses a classic First Amendment problem. The underlying theory of the First Amendment is that public, open discussion is the best insurer of governmental integrity; that dishonest and misleading propaganda will be exposed by the right of others to publicly proclaim the truth. But -and here is the problem – if the purveyor of the lies can hide behind laws protecting the truth from public disclosure, then the First Amendment does not work. So, Mike Rogers can become a millionaire by hosting a radio show to trumpet his lies while Edward Snowden is branded as a criminal for disclosing the truth. I know this is complicated. Government cannot afford to sanction law-breaking. But the end result is still troubling to me.
January 6, 2014 § Leave a comment
Two federal district judges, within the past two weeks, have rendered squarely opposing decisions concerning the constitutionality of NSA’s collection of metadata. That metadata, accumulated continuously since 2006, consists of the daily acquisition of the following information from all major carriers of telephonic communication within the United States: The time, date and duration of every telephone call made within, to or from any telephone in the U.S.; the length of the call; the telephone numbers of the source and destination of the call; and the transmission tower which transmitted the call (thus identifying the physical location near where the call was made). This metadata is held in NSA databanks, where it is retained for five years.
In the following post I will write about these two decisions, my opinions of them and what I perceive as serious implications from their rulings for the future of our country.
One reason lawyers’ writing fails to command the attention of ordinary readers is that they don’t think like ordinary people. Lawyers, like me, try to reason toward a conclusion by first stating the bases that lead to it. After setting out those bases, the lawyer triumphantly announces the conclusion.
Newspaper reporters and writers, who write for a living, call this “burying the lead”. The idea is not to bore the reader with long descriptions of facts, events and opinions before disclosing the purpose of the piece.
This is an effort to avoid that pitfall.
The two court decisions discussed below involve some very important legal issues that significantly affect the relationship between all of us and government, both federal, state and local:
In this digital age, our communication capability depends on use of third-party facilities that relay the expression of our thoughts about everything in our lives: Satellites, telephone towers and switch complexes, coaxial cables, and an array of other “hubs” that pick up the signals we emit from our phones, Ipads and computers and send them on their way to specific or general destinations chosen by us. When property law is applied to those processes, the result is that we transfer ownership of our thoughts to those “hubs” when we tap screens or buttons on our communication devices. So, when government wants to know what we are up to, it doesn’t have to involve us or even make us aware of its curiosity. It can go to the “hubs” and intercept all the information it wants.
An ancillary legal result of this the legal principle declares that if we share information about ourselves with a third party, we can no longer claim that it is private, not available for the scrutiny of others. This idea that allowing one peep from one person entitles the world to peep is, fortunately, subject to an important exception: If society reasonably believes that, regardless of having involved a third party in the transmission of our information, it should nevertheless be private and unavailable to unauthorized disclosure, then the Fourth Amendment imposes restrictions of government’s right to access it.
The Supreme Court has grappled with these principles for decades. One case involved a policeman, sans warrant, sticking a tape recorder to the side of a telephone booth and recording Mr. Katz’s end of a telephone conversation. The Court held this violated the Fourth Amendment. In another case, again warrant-less, police went to the telephone company switch room and attached a pen register that recorded every telephone number dialed by Mr. Smith for a period of thirteen days. The Court decided that this did not violate the Fourth Amendment because Mr. Smith was presumed to know that the numbers he dialed were recorded by the telephone company. Why? Because every month he received a bill that listed those numbers. So, five members of the Court ruled that he should have known that the government might have access to that information.
We now know, thanks to Edward Snowden that, since 2006, NSA has obtained, from all domestic telephone carriers, copies of every telephone call made to or from every telephone in the United States and has retained a database consisting of that information for the past five years. This has been done without any warrant claiming any of the callers were guilty of any wrongdoing. The accumulation of this information has been done pursuant to orders of the FISA court, but the only justification for securing those orders has been a showing that the information was relevant to the effort to thwart terrorism.
The two federal district court cases discussed in the following essay represent two opposing views of the above mentioned legal principles and their proper application to this metadata acquisition and accumulation. If the Supreme Court ultimately decides that we are like Mr. Smith, then any government agency can track all of our communications, telephonic or otherwise, if they involve third party hubs. They won’t be able to listen to our conversations but they will be able to know whom we communicated with and who communicated with us, when, for how long and where we were when the communication occurred.
If they decide, as Judge Leon did in the Klayman case, that we did not reasonable anticipate, when me engaged in digital communication for the past five years, that the government would be tracking each of those communications and maintaining a record of them available for future access, then the Fourth Amendment will protect us. If they agree with Judge Paulley’s decision in the A.C.L.U. case, the Fourth Amendment will be inapplicable.
I believe this is a turning point in this experiment of ours: How to balance freedom and security in a democracy. If the Fourth Amendment allows the federal government to do what NSA has done, that same Fourth Amendment is the only barrier to the same kind of surveillance by state and local government agencies. Everyone wants to be protected from a terrorist bomb. I believe too little attention is being paid to the danger of NSA type surveillance by the Ted Cruz administration or by some rural county sheriff targeting political enemies or by the DEA waging the “war on drugs”.
So, here is my “lead”. If you are interested in how two federal district judges have reacted to these issues, read on.
The Judges and the Parties
Judge Richard Leon was a classmate of later-to-be Supreme Court Justice Clarence Thomas. He was appointed to be a federal district judge in the D.C. Circuit by President George Bush.
Judge William Pauley III was appointed to be a federal district judge in the Southern District of New York by President Bill Clinton.
Larry Klayman is counsel for the plaintiffs in the Klayman case. Ignoring the time-honored maxim that a lawyer representing himself has a fool for a client, Klayman is both counsel and one of five plaintiffs in the case. His career exemplifies the reason lawyers have a bad reputation: In 1988, he sued his mother for $50,000, seeking reimbursement for medical expenses incurred on behalf of his grandmother. His brother reported this to Newsweek and, when it published the information, Larry Klayman blamed the Clinton White House, with which he had been feuding. Two different federal judges, one in California and one in New York, banned him from appearing in their court because of his misbehavior. The Florida Bar Association publicly reprimanded him for mishandling a suit for a client. He has filed numerous suits against government agencies. He sued Rachel Maddow for defamation. The case was dismissed and he was ordered to pay several thousand dollars to reimburse her for defending the groundless suit. This is only part of a Wikipedia description of this lawyer. Unfortunately, he is in charge of an important lawsuit.
The other named plaintiff, Charles Strange, is the father of a former NSA employee who was killed in a Seal Team operation. His apparent motivation for this litigation is based on his belief that NSA was responsible for his son’s death. Judge Leon dismissed the claims made by the remaining three plaintiffs because they were not subscribers to any telephone carrier. There is no apparent explanation for Klayman choosing himself, Mr. Strange and three others who did not subscribe to telephone service as plaintiffs seeking relief in federal court for the government’s misuse of telephone service. Surely, of the more than 250 million telephone subscribers in America, there were other more appropriate plaintiffs. But, who am I to argue with success?
Klayman intends to expand his suit as a class action. Judge Leon has made no ruling on that application. One issue will be whether Klayman and Strange are appropriate representatives of what will surely be a very large class or telephone users. That may prove to be an interesting issue.
The Klayman Decision
Having expressed my opinion, in several thousand words, of the NSA’s metadata accumulation, I assume it is obvious that I agree with Judge Leon and disagree with Judge Pauley. So, I am certainly biased. But, if you read even a part of Judge Leon’s opinion, I think you will see that he has crafted a creative opinion, dealing fully with the counter arguments he anticipates and carefully declining to rule on issues unnecessary to his conclusion.
The Standing Issue
Federal courts have limited jurisdiction. Before they can render a judgment, they must have before them a “case or controversy”. This has been construed to mean that the party seeking relief must prove that he or she has sustained or will sustain a violation of some legal right if relief is not granted.
Before the Snowden disclosures, this was a serious barrier to obtaining judicial review of NSA’s surveillance practices. Secrecy prevented people from knowing the government had acquired information about their telephone subscriptions. So, they could not establish standing to challenge the activity. When documents disclosed by Snowden revealed that NSA maintained metadata consisting of every telephone number of every telephone used in the U.S., any telephone subscriber acquired at least an arguably valid claim of standing to challenge that NSA practice.
Once that threshold was breached, the issue became: Did the NSA’s acquisition of the information violate any right?
The ultimate outcome of the conflict between the Klayman case and the Clapper case depends on whether NSA’s collection of data about a telephone number without any claim that the subscriber has violated any law or regulation violates the subscriber’s rights.
Judge Leon’s Careful Limits on The Scope of His Decision
The judge wisely disclaims any opinion about the broad accumulation of internet, email and social media data in the program called “Prism”. He agreed that plaintiffs’ claims of injury because of that program were too vague and speculative to qualify for standing. Thus, he seeks to avoid conflict with the Supreme Court decision in Clapper v.Amnesty Int’l, wherein the Court held that Amnesty’s fears that their overseas telephone calls to clients and others would be intercepted by NSA were too speculative to qualify for standing to bring suit.
During oral argument Judge Leon asked Larry Klayman whether he had any evidence that the government had accessed any of his or Charles Strange’s online activity. Klayman responded, “I think they are messing with me.” Not surprisingly, the Judge decided this fell short of establishing standing to complain of government’s monitoring of internet traffic. In addition, Judge Leon’s opinion cites two statements by NSA that the process of wholesale accumulation of email and internet metadata was discontinued in 2011. [Page 4, footnote 6] Thus, the injunctive relief sought by the plaintiffs would be moot.
The Admiinistrative Procedure Act Claims
The plaintiffs alleged that NSA and the FISA court exceeded the authority granted by Congress when they ordered the acquisition of the telephonic metadata. The APA contains a broad grant of jurisdiction to federal courts to hear such claims.
Judge Leon ruled against the plaintiffs and included a lengthy analysis of the issue in his opinion. As construed by previous decisions, the general grant of jurisdiction in the APA is subject to an exception: If Congress has declared, or at least plainly implied, by other legislation, that challenges to the authority of a particular federal agency must be made according to a procedure specifically designed for making such challenges, that procedure must be followed and the general sweep of the APA procedure is inapplicable. Because the law creating the FISA court includes specific procedures for challenging its rulings, Judge Leon rules that the general grant of jurisdiction in the APA does not apply. He therefore denies all claims made by the plaintiffs based on the APA.
The Non-Subscriber Plaintiffs
As stated earlier, for reasons best known to him, Larry Klayman picked three of his plaintiffs from the relatively small number of Americans who have no telephone service. So, Judge Leon dismissed their claims because they had no basis for complaining about the government’s acquisition of telephone information..
To summarize, he limits his ruling to the accumulation and analysis of telephonic metadata. He bases his decision solely on the 4th Amendment, disclaiming any opinion about conflict with the 1st Amendment.
The Fourth Amendment Claims
The Statutory Basis For Government’s Acquisition and Use of Telephone Metadata
50 U.S.C. 1861, a part of the Patriot Act, has been construed to authorize the FBI to file an ex parte application in the FISA court seeking the right to seize and copy “call detail records” of all telephone calls made to and from telephones located in the U.S.. The application must include a “statement of facts showing that there are reasonable ground to believe that the tangible things sought are relevant to an authorized investigation. . .to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.” quoted at page 11 [emphasis added]
As a result of Snowden’s disclosures, made though The Guardian, we now know that these applications have been filed and granted for the past seven years. Based on them, the NSA has required all domestic telephone carrier companies to forward to NSA each day, call detail records of every telephone call made within the U.S..
Here is a description of a “call detail record” taken from Judge Leon’s opinion, quoting from a FISA order disclosed by Snowden and acknowledged to be authentic by the government: “For purposes of this Order ‘telephony metadata’ includes comprehensive communications routing information, including but not limited to session identifying information(e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, Internationsl Mobile Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call.” [page 15, footnote 16]
Based on FISA orders like the one just quoted, NSA has a five-year database containing that information obtained from all carriers
The Way NSA Accesses and Uses Its Five-Year Accumulation of Metadata
Judge Leon accepts the Government’s own description of its use of its metadata. The process starts with a ‘seed”, described as a telephone number originating with a person of whom NSA has a “reasonable, articulable suspicion” (RAS) as being somehow connected with a foreign terrorist organization. When the seed has been identified, the seed’s telephone number is used as a starting point for identifying others with whom the seed has been in contact.
Here is Judge Leon’s description of this process:
“In plain English,h this mean that if a search starts with a telephone number (123)456-7890 the first “hop” will include all the telephone numbers the “seed” has called or received calls from in the last five years (say, 100 numbers),the second hop will include all the telephone numbers that each of those 100 numbers has called or received calls from in the last five years (say 100 numbers for each of the “first hop” numbers” or 10,000 total), and the third hop will include all the phone numbers that each of those 10,000 numbers has called or received calls from in the past five years (say,100 calls for each of the “second hop” numbers or 1,000,000 total).” He concludes “. . . it is likely that the quantity of phone numbers captured in any given query would be very large.”. [Opinion page 18]
For more of the Judge’s analysis see footnote 21 at page 19 of the decision. The Judge remarks that the NSA spokeswoman who sought to trivialize the number of telephone numbers typically accessed in response to a RAS was guilty of a “glaring understatement” and that her assurance that the total number of telephone numbers analyzed based on a “seed” was a “small percentage” was “virtually meaningless when placed in context.” Judge Leon observed that, if one of the telephone numbers used to identify the “seed”‘s contact happened to be a Domino’s Pizza, the result would be expanded dramatically.
Here is Judge Leon’s description of NSA’s analysis process after the “three hop” search has created a new sub-group of telephone numbers:
““Once a query is conducted and it returns a universe of responsive records (i.e., a universe limited to records of communications within three hops from the seed), trained NSA analysts may then perform new searches and otherwise perform intelligence analysis within that universe of data without using RAS-approved search terms. [citation omitted] According to the Government, following the ‘chains of communication’ – which, for chains that cross different communications networks, is only possible if the metadata is aggregated – allows the analyst to discover information that may not be readily ascertainable through other, targeted intelligence-gathering techniques. [citation omitted] For example, the query might reveal that a seed telephone number has been in contact with a previously unknown U.S. telephone number – i.e., on the first hop. [citation omitted] And from there, ‘contact-chaining’ out to the second and third hops to examine the contacts made by that telephone number may reveal a contact with other telephone numbers already known to the Government to be associate with a foreign terrorist organization.” [Opinion, page 20]
Fourth Amendment Claims Not Precluded
As discussed earlier, Judge Leon ruled that Plaintiffs’ claims based on the APA were precluded by the Congress’s appeal procedure from actions by the FISA court. He distinguished that from preclusion of constitutional claims based on the Fourth Amendment. Citing Supreme Court precedent, he wrote that denying the right to bring a constitutional claim in federal court required a significantly more explicit expression of intent by Congress than required for precluding statutory claims. Here is his analysis:
““The presumption that judicial review of constitutional claims is available in federal district courts is a strong one [citation omitted] and if the . . . heightened standard is to mean anything, it is that Congress’s intent to preclude review of constitutional claims must be much clearer than that sufficient to who implied preclusion of statutory claims. Where, as here, core individual constitutional rights are implicated by Government action, Congress should not be able to cut off a citizen’s right to judicial review of that Government action simply because it intended for the conduct to remain secret by operation of the design of its statutory scheme. While Congress has great latitude to create statutory schemes like FISA, it may not hang a cloak of secrecy over the Constitution.” [Opinion, page 35][emphasis added]
The Plaintiff’s Claims That Their Telephone Numbers Were Accessed and Analyzed Are Not Speculative
Judge Leon rejected NSA’s contention that the Plaintiffs’ claims were speculative because they could not prove their particular telephone numbers had been accessed and analyzed. He caught the government simultaneously arguing that, to be effective in combating terrorism, it had to have access to all telephone numbers; then contending that the Plaintiff’s telephone numbers may not have been accessed or analyzed. His demolition of this twisted logic is a pleasure to read. Here is a footnote that is a classic piece of lawyering: Cutting through complexity with easily understood analogy.
““The difference between querying a phone number belonging to a domestic Verizon subscriber (for which metadata has been collected) and querying a foreign number (for which metadata has not been collected) might be analogized as follows: A query that begins with a domestic U.S. phone number is like entering a library and looking to find all of the sources that are cited in Battle Cry of Freedom by James M. McPherson (Oxford University Press 1988). You find that specific book, open it, and there they are. ‘Hop one’ is complete. Then, you want to find all the sources cited within each of those sources (‘hop two’), and so on. At the end of a very long day, you have looked only at books, articles, etc. that were linked to Battle Cry of Freedom.
“Querying a foreign phone number is like entering a library and trying to find every book that cites Battle Cry of Freedom as a source. It might be referenced in a thousand books. It might be in just ten. It could be zero. The only way to know is to check every book. At the end of a very long month, you are left with ‘hop one’ results (those books that cite Battle Cry of Freedom), but to get there, you had to open every book in the library.” [Opinion, page 40, footnote 18]”
It seems to me that Judge Leon has effectively ended any argument about whether any U.S. telephone subscriber’s telephone number, including information related to that telephone number, has been acquired, accessed and analyzed by the Government. The “speculative” defense has, I think, been destroyed.
The Right of Privacy, the Fourth Amendment and Smith v. Maryland
The last twenty-five pages of Judge Leon’s opinion, (pages 43-68), are an essay on the impact of modern technology on the appropriate legal analysis of Fourth Amendment rights. He begins with a discussion of Smith v. Maryland, the Supreme Court case that is relied upon by all defenders of NSA’s metadata program. That case, decided in 1979, involved a robbery victim who, after the robbery, received threatening phone calls she associated with the robbery. When she complained to the police, they arranged with the telephone company to attach a pen register to the telephone line belonging to Smith, a suspect in the robbery. They did so without a warrant or a court order. The pen register disclosed that, during the thirteen days it was attached to Smith’s phone line, a call was made to the victim’s home. That became a key piece of evidence leading to Smith’s conviction.
Judge Leon cites abundant evidence that the technology at issue here is dramatically different from the brief pen register attachment in Smith. Without attempting to summarize all of his reasoning, suffice to say that he argues that applying the Court’s reasoning in Smith to the NSA’s surveillance program is like comparing traffic safety regulations designed for horse and buggy traffic to those appropriate for modern freeway driving.
The standard applied by the five Justices who wrote the opinion in Smith was the one announced in an earlier case, Katz v. U.S., which held that attaching a listening device to a phone booth and recording a conversation by a caller violated the Fourth Amendment. There the Court, following earlier precedent, ruled that the Fourth Amendment protected a right of privacy reasonably assumed to exist by society. The Court ruled that, because Smith, as a telephone subscriber, knew his telephone calls were recorded by the telephone company in order to prepare his bill, he had no reasonable expectation that the telephone numbers he called were kept private.
Judge Leon contends that these decisions are wildly in-apposite to a belief that the average American telephone user assumes that the government is maintaining and has maintained a giant database consisting of every telephone number of every call they make and of every call made to them; that this data is retained, accessed and analyzed by the government for five years .
The Judge cites other Supreme Court decisions which, to me, are more pertinent to the issue. For example, in one decision, the Supreme Court held that the Fourth Amendment was not violated when the police attached a short range tracking device to a suspect’s car and used it to track him on one occasion. The Court held that, when we drive about, we have no expectation that our movements may not be observed by others. In another case, however, the Court held that the Fourth Amendment was violated when the police attached a long range beeper to a suspect’s car and used it to track his movements for a month.
The NSA’s Collection of Metadata is Unreasonable
In the concluding part of his opinion, Judge Leon responds to the Government’s claim that the acquisition and retention of its metadata was and is necessary because seeking judicial approval would take too long. He wrote that NSA cited three instances where they used the metadata in apprehending an alleged terrorist. In all three, the metadata was accessed after the suspected terrorist had been identified using other conventional means. The metadata was used either to find another participant in a plot or to confirm information already known. In none of the examples cited by NSA was speed a factor.
American Civil Liberties Union v. Clapper
In this case Judge Paulley discusses and considers each issue ruled upon by Judge Leon. He agrees that A.C.L.U has standing because of the disclosures made by Snowden. He agrees with Judge Leon that A.C.L.U.’s claims based on the Admiinistrative Procedure Act fail for the same reasons cited by Judge Leon.
He disagrees with Judge Leon’s bases for distinguishing Smith v. Maryland. He contends that, while telephonic usage and technology have dramatically changed, a telephone is still a telephone. For Judge Pauley, when the Supreme Court decided that a pen register could be attached to Mr. Smith’s telephone without a warrant, that settled the issue: One telephone or 300 million telephones, thirteen days or five years, Judge Pauley can’t see any difference.
He discusses the possibility that NSA might utilize a database of 300 million telephone calls over a five-year period to look for some patterns of behavior that might involve more prying into the lives of innocent citizens than was possible when the government attached a pen register to a single telephone line. Here is how he dismisses such fears:
““. . . , without resort to additional techniques, the Government does not know who any of the telephone numbers belong to. In other words, all the Government sees is that telephone number A called telephone number B. It does not know who subscribes to telephone numbers A or B. Further, the Government repudiates any notion that it conducts the type of data mining the ACLU warns about its parade of horribles.” [Opinion, page 41] He buttresses his confidence on this point by citing this reassurance from General Alexander:
“General Alexander’s testimony on this point is crystal clear: ‘]I]n the open press there’s this discussion about pattern analysis on this. That is absolutely incorrect. We are not authorized to go into the data, nor are we data mining, or doing anything with the data other than those queries that we discuss, period. We’re not authorized to do it. We aren’t doing it. There are no automated processes running in the background pulling together data trying to figure our networks. . . . The only time you can do pattern analysis is, once you start the query on that query and where you go forward.’ Alexander Testimony at 66”
This exemplifies Judge Paulley’s entire approach to the case: He accepts without any hint of skepticism every reassuring statement from NSA witnesses. Here is an example that he includes in his opinion. I think this is dishonest because he cites and discuses Judge Leon’s opinion and therefore is bound to know how misleading these numbers are.
“Because each query obtains information for contact numbers up to three hops out from the seed, the total number of responsive records was ‘substantially larger than 300, but. . ..still a very small percentage of the total volume of metadata records.’ [quoting an NSA declaration ] Between May 2006 and May 2009,the NSA provided the FBI and other agencies with 277 reports containing approximately 2,900 telephone numbers. [citation of NSA declaration omitted]” [Opinion, page 12]”
Without the information in Judge Leon’s opinion, we might conclude that we are all exaggerating the importance of this argument. 2,900 telephone numbers doesn’t look like much of a trove of data. It also conceals what NSA actually does.
Judge Paulley discusses the automobile tracker cases cited by Judge Leon. He argues, however, that the decision finding that a Fourth Amendment violation had occurred was based on the fact that the device left on the suspect’s car for a month was placed there in a way that caused the Court to equate it with an actual intrusion into the car. That does not comport with the quotation from the second decision quoted in Judge Leon’s opinion. See Judge Leon’s opinion, pages 46-47.
These two federal district court decisions neatly contrast the nature of the debate in progress in our nation. Like any debate, the statement of the issue is important. I believe a fair version of the issue is:
What is the most serious and fundamental threat we face: Bombs from a foreign terrorist or our government’s effort to protect us?
I contend the answer is “our government’s effort to protect us”. My contention is based on my understanding of history. It seems to me that ceding power to government is always an irreversible transaction. Once acquired, power is never relinquished. I fear this NSA surveillance because it is power given to an agency that operates in secrecy; whose operational purpose, spying, is one that succeeds by lying and deception. Everything about it is anathema to the safeguards of a legal system and a Constitution that has force only if enforceable in court.
Even if we trust the present managers of these powers, allowing the creation of such potentially damaging weapons will serve as a temptation for abuse for countless generations. Already, local police chiefs and county sheriffs are clamoring for access to this gigantic mass of information about every person in this country. Are we so naive as to think that information will not sooner or later be used to punish political enemies or to crush unpopular dissent?
LIke all my fellow Americans, I am waiting with a mixture of hope and apprehension for the decision of President Obama concerning the proper limits of these surveillance programs. I hope his background as a constitutional law professor will give him courage to accept the risk that ,if he reins in NSA and a terrorist bomb explodes during his presidency, he will be blamed.
I will be watching and hoping.
November 3, 2013 § Leave a comment
My friend Sid Eschenbach, with whom I have sparred at length about the NSA surveillance program, sent me a link to a great source of information about it, published by the Guardian. Here is that link: Guardian Surveillance
This comprehensive source of information is interesting and factual. It deserves the widest possible distribution. I think it raises issues that will determine the kind of country we want America to be and to become.
My debates with Sid have caused me to think beyond my initial hostility toward government’s intrusive snooping. The real question is: How can we preserve our interest in being let alone while permitting our government to take sensible steps to protect us from harm? The Fourth and Fifth Amendments to our Constitution express our willingness to take some risk as a price of freedom, but how much risk?
I have been pleased to learn that significant numbers of my fellow countrymen/women share my anxiety about this matter and, according to recent polling, seem willing to accept some risk in exchange for preserving limits on government power.
The challenge, as I see it, is to craft legislation that permits the use of government surveillance to thwart efforts by foreigners to commit terrorist attacks on the United States, while prohibiting the use of that surveillance in criminal prosecutions or in civil or administrative proceedings.
The history of Fourth Amendment law is useful as a guide toward that result. After decades of abuse by law enforcement agents, the federal courts finally used a remedy that was generally effective: the “exclusionary rule”. That rule made evidence obtained as a result of any method that violated the Constitution inadmissible in a criminal proceeding. In effect, it told cops, “If you beat a confession out of a suspect, he will be set free even if he is guilty.” It did not eliminate the problem, but it did require cops to perjure themselves in order to excuse their lawlessness. The possibility of going to prison moderated the zeal of many cops.
That is the remedy that might correct some of the surveillance abuses. “Terrorism” would have to be carefully defined in the law. The law would prohibit the use of any information or evidence obtained, directly or indirectly, pursuant to the laws serving as a basis for NSA’s surveillance programs in any criminal, civil or administrative proceeding , followed by two exceptions: First, the law would not apply to prosecution of “terrorists”. Second, the law would not apply to evidence obtained pursuant to a warrant issued by a court of competent jurisdiction. The law would declare that it was not intended to diminish or impair any right protected by the Fourth or Fifth Amendments to the Constitution. Finally, the law should prohibit any court from issuing a warrant based on “pattern of life” claims and any warrant not directed at specifically identified individuals or corporate entities. Blanket warrants permitting data vacuuming would not be permitted. This would not prevent that kind of metadata accumulation for the limited purpose of detecting terrorists, but it would prevent the use of evidence obtained pursuant to such warrants for any other purpose.
The Constitution does not prescribe limits on the extent of the rights it protects. Congress can enlarge and extend those rights. This law would do so.
I am not sure these restrictions will be enough to protect us from government abuse. I would much prefer a blanket ban on government acquisition of metadata for any purpose, requiring a court order based on specific need and fact-based reasonable suspicion as a prerequisite for access to such data. I have what I believe is a well founded fear that, no matter what legal restrictions are imposed, zealous bureaucrats will get around them through absurd opinions written by unethical lawyers and, if all else fails, through perjury and deceit. The recent lying to a congressional committee by James Clapper, Director of National Intelligence, who has not been prosecuted for perjury, plainly supports my fears on this score.
I am very encouraged by the news that Glenn Greenwald has obtained funding for the launch of a new news service that will be based on the muck-racking tradition of journalism identified with Ida Tarbell, Upton Sinclair, Ray Stannard Bakee and Lincoln Steffens. It may be that, once again, the First Amendment will save us from government run on the East German Stasi model.
July 7, 2013 § 4 Comments
A front page story in today’s New York Times describes how the FISA Court is creating a secret body of law that affects the life of every person who has lived in the United States during the past six years and millions of others who live in other countries. Here is a link to that important story::
I believe this story describes an issue far more important to the future of our country than the government mendacity exposed by the Pentagon Papers. To appreciate how fundamentally this threatens a vital principle of our legal system, it is necessary to consider its implications.
First, we claim that our government’s legitimacy is based on our consent, the “consent of the governed”.
Second, our Constitution provides that law making is reserved to the Congress.
Third, our legal system is based on two kinds of law: statutory law, including constitutional law, and common law. Common law is a system of law we brought with us from Britain. It is based on the accretion of precedents consisting of decisions of previous courts. The doctrine according to which it develops is stare decisis, which is Latin for “to stand by things decided”. The principle involved is that the law should be applied alike to similar issues; that its interpretation should not depend upon the identity of the litigants. This enables people to predict, with a reasonable degree of confidence, what the decision of a court will be, given a particular set of facts. It insures that justice for one will be justice for all.
Fourth, we, the people, choose those to whom we entrust the power to make laws that affect us. We make those choices through democratic elections. To make those choices intelligently, we need and are entitled to pertinent information, so that, if the lawmakers we chose do not exercise their authority to make laws that please us, we can fire them and hire replacements.
I apologize for repeating these elementary principles. I know they are taught, or should be taught in public schools. I do not intend to condescend to my readers but, given the nature of the recent discussion of the FISA court and the N.S.A. surveillance it has been authorizing, I have some doubt that the commentators are paying appropriate attention to these fundamentals of our government and our political system.
We now know that the FISA court, eleven judges appointed by Chief Justice Roberts, ten of whom are appointees of Republican Presidents, has, in a series of hundreds of decisions, each one building on its predecessors according to the doctrine of stare decisis, erected a legal structure that approved the gathering by our government of a trove of data containing every tiny detail of every move, choice, purchase, communication, financial transaction, preference and relationship of every person in the United States and, as stated, uncounted millions in other countries. That data, in turn, has been opened for analysis according to rules and choices made by government officials and private contractors’ employees, supervised by secret decisions made by the FISA court.
Without knowing what, if any, polling has been done following these disclosures, I feel absolutely safe in assuming that most people, here and abroad, were astonished when they discovered that such intimate details of their lives were recorded in searchable databases owned by the United States government. That astonishment means that the above-stated system of government has not been operational concerning this matter.
It is true that, theoretically, the members of Congress have been able to find out about these developments. It is also true that “theoretically” is the operative word in that sentence. It is obvious that a majority of the members of the House and Senate did not take the trouble to find out the details of FISA’s proceedings and decisions. It is also true that, when a Senator, e.g. Senators Wyden and Markey, tried to find out some of the details, N.S.A. declined to answer their questions.
Because of this lack of public knowledge, the Fourth principle stated above, did not work. We, the people, did not express our opinions about what N.S.A. was doing or how the FISA court was interpreting the laws our elected representatives enacted because N.S.A and the FISA court kept what they were doing a secret. In other words, democratic government was sidelined behind a wall of classified insulation.
I am outraged about this and I think others should be also. If we no longer believe that we can bear the risks of living in a free country, we should stop pretending otherwise.
I am afraid my fellow countrymen are in danger of falling into a trap that government always uses to lull guileless people to sleep: “If you haven’t anything to hide, you need not worry about our right to pry into your personal life.” I wish the FISA court would decide that personal diaries might offer “foreign intelligence” and order all diaries submitted for copying by a government agency. Maybe then, people would wake up and realize that, regardless of whether they “have anything to hide”, they don’t like the government intruding into their private lives. Of course I”m dating myself with that fantasy. No one keeps a diary anymore. They post everything on Facebook or Twitter or some other public forum.
The insidious and sinister nature of the N.S.A. surveillance program is that it enables the government computers to fish for “patterns” that are then interpreted to mean various things about the person whose data is analyzed. When we go about our daily lives, we do not consider how our choices made over a period of years can be filtered and sorted to appear dangerous or scandalous or embarrassing. When all the data is available, “connecting the dots” depends on the biases and motives of the connector, not necessarily those of the connectee.
There is a good movie that perfectly illustrates the concerns I am trying to express here. “Lives of Others” is a 2006 movie about the Stasi, East Germany’s intelligence police and their obsessive accumulation of information about East German citizens. I don’t know where or if it is still available. I assume it is probably on sale at Amazon. If it becomes available on some TV channel to which you subscribe, check it out. Like “1984” and “Brave New World”, it expresses dramatically what I’m trying to express here.
I have no reason to believe that the present government has malevolent intentions concerning the use of the data that has been accumulated. I do not know, however, about the intentions of those who may have access that data in the future. It is a “weapon of mass destruction” whose ownership and control should not depend on the outcome of future elections.
James Mason, a legal scholar and one of our founding fathers, once wrote, “Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.”
June 16, 2013 § Leave a comment
The last four essays posted on this blog concerned different versions and elaborations of my objection to the targeted drone killings and broad surveillance by the Obama administration to locate and capture or kill people who seek to harm the United States. I have included a discussion of a friend’s disagreement with my objections. In the “Comments” section of the third essay, entitled “The Prism of Work”, I copied four sets of those objections and some supporting material related to them. I have also posted an essay by Sam Harris that emphasizes the seriousness of the threat posed by adherents to an extreme form of Islam that offers membership in paradise to any who wreak harm on America.
In the following essay I will contend that, although the threat of harm from terrorists is real, I nevertheless believe we should choose to maintain our safe haven from the dangerous intrusions of our government into our lives as well as its claim of authority to kill people, including American citizens living abroad, based on the secret judgment of a small committee composed of the President and a few of his advisers.
Some Historical Perspective
The Alien and Sedition Acts
Fear of harm from foreigners is a recurring theme in American history. In 1798, just nine years after adopting our Constitution and its Bill of Rights, the Federalist dominated Congress adopted the Alien and Sedition Acts. The Alien Act granted executive authority to the President to force the deportation of any foreign emigrant whom he regarded as “. . . dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government thereof,. . . .” A companion act provided that a person would be guilty of “a high misdemeanor” if he should ” . . .unlawfully combine or conspire together, with intent to oppose any measure or measures of the government of the United States, which are or shall be directed by proper authority, or to impede the operation of any law of the United States, or to intimidate or prevent any person holding a place or office in or under the government of the United States, from undertaking, performing or executing his trust or duty, and if any person or persons, with intent as aforesaid, shall counsel, advise or attempt to procure any insurrection, riot, unlawful assembly, or combination, whether such conspiracy, threatening, counsel, advice, or attempt shall have the proposed effect or not. . . .”
President John Adams signed these legislative panic buttons into law.
Thomas Jefferson, the Vice President and opposition leader of the Democratic Party, and James Madison anonymously authored a written , criticism of this legislation, known as “The Virginia and Kentucky Resolutions”, but that did not prevent several people from being jailed pursuant to it. The ACLU would make short work of these laws today, but a court’s right to declare void a law authorizing actions prohibited by the Constitution was not established until 1803, when John Marshall rendered his decision in Marbury v. Madison.
Jefferson won the 1800 presidential election and, after taking office in 1801, he pardoned everyone who had been convicted pursuant to the Alien and Sedition Acts during the Adams administration. The laws were never repealed, however, and Jefferson used them to prosecute a few of his own critics. They have never been formally overruled but later Supreme Court decisions referred to them disparagingly and made clear that, if challenged, they would not survive.
So, what caused the American Congress to cede such sweeping powers to President Adams and thence to President Jefferson? The French Revolution had begun with the assault on the Bastille in 1789. It continued for ten years, during which the French National Assembly adopted “The Rights of Man”, a list of rights that made uncomfortable the landed gentry who were running the fledgeling United States government. The radical French ideas were carried to America by French immigrants and, with support from Jefferson’s Democrats, the Federalists were fearful that some kind of revolution might ensue if these new trouble makers were not restrained. The Whisky Rebellion in Western Pennsylvania in 1792, and the execution of King Louis XVI in 1793 were unsettling to Federalists like Adams. They regarded the French revolutionists in ways similar to the way we fear Muslim terrorists: Foreigners hostile toward our institutions with a proven willingness to use violence to attain their goals.e
The Red Terror
There have been several perceived excuses for abandoning the limits on government. Anarchists mailed bombs to a lengthy list of politicians in 1919. The bombs did not succeed in killing any of the intended recipients, but they did kill some innocent staff members and friends as well as blowing off the hands of one housekeeper.
That, along with some strike violence (caused either by the strike-breaking cops and Piinkertons or by the union strikers, depending on your point of view) and the uneasy reaction to the Russian Revolution that began in 1917, gave Woodrow Wilson and his Attorney General A. Mitchell Palmer, an excuse for the infamous “Palmer Raids” between November 1919 and January 1920. 10,000 people were arrested and over 500 aliens were deported. Palmer authorized the raids but they were directed by J. Edgar Hoover, head of the Justice Department’s Bureau of Investigation’ s “Intelligence Division”.
Congress stoked these activities by adopting a new Espionage Act in 1917. The Act was amended and broadened in 1918. It provided a death penalty for anyone discouraging compliance with the draft. In a 1919 Supreme Court decision, Schenk v. U.S., Justice Holmes concurred in affirming a conviction of a Socialist who distributed pamphlets urging men to resist conscription. In his opinion Holmes coined the “clear and present danger” standard for government suppression of expression, often used by advocates of free speech to defend against censorship but, as stated, he voted to send the pamphleteer to jail. Later that same year, in Abrams v. U.S., he joined Justice Brandeis dissenting in a similar case because, he explained, the pamphlet in that case was “. . . a silly leaflet from an unknown man . . . .” Fortunately for the First Amendment, his “clear and present danger” statement is better known than the “silly leaflet” rule.
The Espionage Act, as amended in 1918, made it a crime for anyone to use “. . .”any disloyal, profane, scurrilous, or abusive language about the form of government of the United States … or the flag of the United States, or the uniform of the Army or Navy”. It authorized the Post Master to intercept any written material he regarded as containing anything prohibited by the Act.
Describing these laws, court decisions and even the out-of-control raids that they enabled do not truly give an adequate picture of the fear and panic that seems to have gripped the political leaders of our country in response to the threat of Bolshevism. The Russian Revolution, like the French Revolution 130 years earlier, was like a icicle stabbed in the heart of this country’s business class. They were concerned about unions and domestic socialists and anarchists but they were confident that those threats could be handled with the usual weapons of government suppression. The fact that a vast country in the world had been taken over by Bolsheviks in command of the Red Army was an entirely different kind of menace.
The Senate appointed Senator Lee Slater Overman to chair a special subcommittee to investigate Bolshevism. He heard testimony for months in 1918 and 1919. His committee finally issued its report in June, 1919. It was hair raising. The June 19, 1919 New York Times ran an eight column full-page spread on the report with the headline, “Senators Tell What Bolshevism in America Means”. The story made clear the fact that if Bolshevism came to America it would be the end of everything. The only evil thing the story failed to associate with Bolshevism was the Black Plague.
These Bolsheviks were not just rearranging the political furniture; they were tearing the government house down and were apparently willing and able to kill or jail the former occupants. This was by God SERIOUS!
I am not old enough to have lived in the decade or so between 1917 and 1929 but, from what I’ve read, the reaction of the corporate business class and the government it presided over to the Russian Revolution was far more fear driven and excessively geared toward government suppression than America’s reaction to 9/11, even with Bush continuously ringing giant alarm bells and Rudy Giuliani, in the words of Joe Biden, conducting a campaign for the Presidency with nothing but “a noun, a verb and nine eleven”.
It is one thing to face the threat of a bomb launched by a foreign enemy, but that does not equal the fearful possibility of an actual invasion and takeover by the bomb launchers. I do not know of any serious evidence that Al Qaeda wants to invade and occupy the United States. They do want us to get out of Saudi Arabia, stop invading their neighboring countries and stop arming their enemies. I do not agree with them. I regard them as murderous misguided zealots. But I don’t see any evidence that they aspire to invade our country.
Actually, of course, the Bolsheviks never tried to invade the United States. Their rhetoric, however, especially from Leon Trotsky, who never deviated from his “permanent revolution” doctrine, was perfectly tuned to produce a cold shiver along the spine of the denizens of Wall Street.
These historical references are my response to those who claim that the threat of harm from Muslim extremists is unique and, therefore, merits extraordinary remedies that have not been necessary in he past. My point is that the real threats we now face are no worse than those we have faced in the past. Our present enemies, as we perceive them, are no worse or fearful than our perceptions of our past enemies. And, while we have survived the foolish damage to our rights done by our past choices to relinquish our freedom in exchange for government’s promise of safety, I will argue that the kind of weapons that government will grasp if we docilely fail to stop this latest encroachment may be impossibly difficult to take back.
The Dangerous Nature of Governmental Metadata
Here is a link to a documentary video produced by Laura Poitras and published by the New York Times. Just wait through the Acura commercial. The ten minute video will give you an idea of the kind of dossier that Uncle Sam probably has on you and me and millions of other Americans. I hope you will then understand that we are not discussing databases containing only your telephone number and the telephone numbers of those with whom you have exchanged telephone calls.
I don’t claim to be an expert on the details of the surveillance programs we are discussing, but here is my understanding: The government for at least the last seven years has been obtaining from each of the suppliers of telephone service in America all of their recorded data consisting of every telephone call made by or to every one of their subscribers. That has been done because the FISA court has given a broad interpretation to a law that entitles government agencies to demand “business records” from any American business if those records are potentially useful to any proper function of the agency. The accumulated records of telephone calls are “business records”, ergo . . . .
Now, we are told by the government that, although they have all this information, they are not permitted to use it to identify any individual unless they have obtained from FISA an order entitling they to do so. And, they are required to have some “particularized suspicion” that the person whose records they access is somehow related to some matter pertinent to the “War on Terror” or whatever that metaphor is called in governmentspeak. My understanding is that they do not have to get a separate warrant for every individual whose records they look at. I understand that FISA’s orders set certain parameters for accessing those record and, within those parameters, the agencies or their contractor agents may use their judgment. And -listen up; this is important – all details of this process especially the parameters and the orders of the FISA court are top secret.
Now, we are not to worry about this secrecy because, as stated, a court [the top secret FISA court, that is] has oversight to prevent any abuses. Also, the Senate Intelligence Committee is also charged with oversight to see to it that this program is conducted according to the requirements of the Constitution and applicable law.
Here is a link to a Cspan video of Senator Ron Wyden of Oregon, a member of the Senate Intelligence Committee, speaking on the Senate floor in support of an amendment he wanted to append to the December 2012 extension of the FISA Amendment Act, which extended the life of FISA for another seven years. The Act was adopted a couple of days later. The chairwoman of the Intelligence Committee, Diane Feinstein of California succeeded in preventing Wyden’s amendment to be added to the bill. This is a long video (over an hour). I’ll tell you what the Senator was upset about: He and some other Congressmen had been trying for over a year to pry information out of NSA concerning the number of American citizens residing in the the United States whose records had been swept up in the metadata accumulation. NSA responded that information was unavailable. They then asked for a rough estimate, either based on the NSA’s records or on estimates made by some other source of information. The NSA refused to respond to that request.
Here is a link to a Mother Jones story about this Senate debate and its outcome.
[If you have time, you should listen to Wyden’s speech. He makes a perfect analogy between NSA’s dragnet approach to acquiring information and the “Writs of Assistance” used by the British to catch smugglers in the American colonies before the Revolution. There was much resistance to the British taxes on imports (“no taxation without representation”) so the Writs of Assistance allowed British agents to search the houses of citizens to see if they had imported goods for which no tax had been paid. Those writs were part of the reason for the Revolution.]
The official position of NSA is that records of domestic telephone users are not “intentionally” acquired, only incidentally or inadvertently acquired. Senator Wyden plainly regards that as nothing but BS and the refusal to grant his request for the facts only confirmed the results of his smell test.
So, given this information, my faith in the checks and balances and oversight that are claimed is equal to my belief in the Easter Bunny.
The “business records” authority, coupled with the AUMF authority, coupled with the Prism program exposed by whistleblower Snowden, means to me that the government already has the capability to know every detail about each of us: our telephone calls, our emails, our internet searches, our credit card purchases, our physical location at any time if we have a cell phone, our motor vehicle IDs . . . and God knows what else. They have this information in a digital database that is searchable and sortable based on algorithms designed by computer geniuses. They ask us to take their word that they will only use that information according to rules that we cannot know, based on court rulings that we cannot know, obtained without any adversarial process to insure that our privacy interests are protected.
This concerns me more than the threat of another 9/11 bomb for the following reason:
Horrific as the bomb will be, its effects will be temporary. We will die or grieve our dead and our country will survive. Digital data is not temporary and foolish misguided patriots, capable of using fear and intimidation to bully political constituencies are ever plentiful. I am not as fearful of the present misuse of this new compilation of information about all of us as I am of the various ways it will be there, like a ticking bomb, waiting for the next demagogue to choose a new target for government punishment or killing. Abortionists? Tax evaders? Political dissenters? Union agitators? Drug dealers? Drug pushers? Drug users?.
In the 60’s I represented two Lee High School kids here in Houston. They, without authorization, put some cans in the cafeteria to collect money for relief for Biafra. They wrote a little newspaper they named the Phlashlyte (I may have the spelling wrong. It was clever.) To get their paper printed they went to a friend at UofH who had access to a copy machine. Their friend was active in SDS (Students for a Democratic Society), then thought of by some as a radical group. They were suspended from school.
I was lucky enough to have my federal suit fall into Woodrow Seals’ Court and he gave me a trial. In the course of that trial I learned that the Houston Police Department had an “intelligence division” to keep track of “subversive” organizations. Houston ISD high school principals made weekly reports to these cops concerning any “suspicious” activity they observed. The Lee High School coach found the kids handing out copies of their newspaper, grabbed their papers and drove them away from the school grounds.
Woodrow granted an injunction designed to stop the harassment. The kids returned to school and, I suppose, went on with their lives. A couple of years later, another high school student was selling Space City News, a local underground newspaper, before school but near school grounds. The principal came out and told him he had to stop or the police would be called. He replied, “Fuck you and fuck the pigs!” He was suspended. I returned to Woodrow’s court to enforce his injunction. He ordered the kid back to school. He finished, got his diploma and went to A&M. HISD appealed Woodrow’s ruling to the Fifth Circuit. They ignored all my First Amendment arguments and ruled that, because of his disrespectful response to the Principal, he did not have “clean hands” and, hence, was not entitled to any relief.
My motion for rehearing was so disrespectful that my law partner required me to edit it severely before filing it. It did no good, of course. The Fifth Circuit left Woodrow’s injunction in force, so the only person left frustrated was me. My client, I suppose, got a degree at A&M and probably became a Republican.
The reason I mention this experience is that local law enforcement agencies already share federal databases [NCIS, e.g.] to assist them in apprehending criminals. It is an obvious next step for that kind of cooperation to include some or all of this new metadata treasure trove of information. It will occur, of course, after some especially horrific criminal episode involving dead children, raped women or similar outrage. When someone like me protests, he or she will be accused of lack of concern for the victims and their families. If the cooperation is disclosed by a whistle blower, he or she will be demonized. But the dossiers will be out there in the cloud, accessible to our vaunted “first responders”. Then, forget about the Fifth Amendment’s protection against self-incrimination. Everyone will have already “incriminated” themselves for every misdeed they ever committed or thought about.
When the government has this amount of information about everyone, the limits imposed by the Constitution don’t work.
There is only one solution to this problem: The databases must be destroyed under the close supervision of a federal court. The data must be erased and the medium containing it must be burned or crushed. There is no safe place for this kind of government metadata.
I know. That same data will still be in the digital vaults of private businesses. But private businesses do not have drones and guns and badges and military forces. They have only greed. I can live with greed. It comes with capitalism and dealing with that problem can await another day.