3 Reasons the NSA's Phone Record Dragnet Is Illegal

House Intelligence CommitteeHouse Intelligence CommitteeThis week the American Civil Liberties Union filed the opening brief in its lawsuit challenging the National Security Agency's ongoing collection of every American's phone records. The brief argues that the program is not authorized by statute and violates both the Fourth and First amendments. Here is a summary of the ACLU's main arguments:

Statutory. The Obama administration claims the routine, comprehensive collection of telephone metadata (showing the number dialed, the date and time of the call, and the length of the ensuing conversation) is authorized by Section 215 of the PATRIOT Act, which allows the government to seek court orders demanding "any tangible things" reasonably deemed "relevant" to a terrorism investigation. "The notion that detailed information about every phone call made by [every] resident of the United States over a seven-year period could be 'relevant to an authorized investigation' finds no support in precedent or common sense," the ACLU says. "The government cannot possibly tie the bulk collection of Americans' call records to a specific investigation, as the statute requires....The program guts the concept of relevance of its usual meaning—indeed, of any meaning." The brief also argues that Section 215 pertains only to existing records and does not authorize prospective collection of metadata, a kind of surveillance addressed by another statutory provision.

Fourth Amendment. The Supreme Court has said the Fourth Amendment does not apply to the numbers you call and from which you receive calls because you have voluntarily divulged this information to the phone company and therefore no longer have a reasonable expectation that it will remain private. This rule is one application of the misbegotten and increasingly alarming "third party doctrine," which federal judges are bound to follow unless and until the Supreme Court reconsiders it. But the ACLU argues that the magnitude and length of the NSA's phone record dragnet makes it qualitatively different from monitoring the sources and destinations of one suspect's calls for a few days. It notes that in U.S. v. Jones, the 2012 case in which the Supreme Court said tracking a suspect's car by attaching a GPS device to it amounts to a "search" under the Fourth Amendment, five justices agreed that people have a reasonable expectation of privacy in the sort of information that can be gleaned from recording the whereabouts of their vehicles for a month. If so, says the ACLU, surely the Fourth Amendment applies to the comprehensive collection of phone records:

The [NSA] program is in several respects considerably more intrusive than the location tracking that was at issue in Jones. The latter case involved the surveillance of a single vehicle over a twenty-eight days. The mass call-tracking program, by contrast, has involved the surveillance of every American over a period of seven years—and the government appears intent on continuing this surveillance indefinitely.

The ACLU emphasizes the size of the program and the sensitivity of the information it collects:

The mass call-tracking program is perhaps the largest surveillance operation ever carried out by a democratic government against its own citizens....

Each time a resident of the United States makes a phone call, the NSA records whom she called, when the call was placed, and how long the conversation lasted. The NSA keeps track of when she called the doctor, and which doctor she called; which family members she called, and which she didn't; which pastor she called, and for how long she spoke to him. It keeps track of whether, how often, and precisely when she called the abortion clinic, the support group for alcoholics, the psychiatrist, the ex-girlfriend, the criminal-defense lawyer, the fortune teller, the suicide hotline, the child-services agency, and the shelter for victims of domestic violence....The data collected under the program [supply] the NSA with a rich profile of every citizen as well as a comprehensive record of citizens' associations with one another....

As the declaration of [Princeton computer scientist] Edward Felten explains, "analysis of telephony metadata often reveals information that could traditionally only be obtained by examining the contents of communications." For example, "certain telephone numbers are used for a single purpose," and their use can reveal a person's religion, political associations, use of a phone-sex hotline, contemplation of suicide, addiction to gambling or drugs, experience with rape, grappling with sexuality, or support for particular political causes. "The phone records indicating that someone called a sexual hotline or a tax fraud reporting hotline will...reveal information that virtually everyone would consider extremely private."

Aggregating metadata across time can yield "an even richer repository of personal and associational details." Even basic inspection of our calling patterns, without relying upon single-use numbers, can reveal: "when we are awake and asleep; our religion, if a person regularly makes no calls on the Sabbath, or makes a large number of calls on Christmas Day; our work habits and our social aptitude; the number of friends we have; and even our civil and political affiliations." It "can reveal the rise and fall of intimate relationships, the diagnosis of a life-threatening disease, the telltale signs of a corporate merger or acquisition, the identity of a prospective government whistleblower, the social dynamics of a group of associates, or even the name of an anonymous litigant."

Finally, aggregating the telephony metadata of many people allows researchers to "observe even deeper patterns." Because individuals are often defined by the company they keep, pooling together one person’s telephony metadata with the telephony metadata of each of her contacts and each of her contacts' contacts allows an analyst to "paint[] a picture that can be startlingly detailed." As Professor Felten writes, "The privacy impact of collecting all communications metadata about a single person for long periods of time is qualitatively different than doing so over a period of days. Similarly, the privacy impact of assembling the call records of every American is vastly greater than the impact of collecting data about a single person or even groups of people."

That last point is the flip side of an argument the Obama administration uses in its "white paper" defending the mass collection of phone records: that the sheer volume of data makes it possible to discern terrorism-related patterns that otherwise might go undetected. If the database is in fact a powerful tool for catching terrorists (a point that is open to question), it is an even more powerful tool for invading innocent people's privacy.

First Amendment. The ACLU argues that knowledge of the NSA's surveillance has a chilling effect on the exercise of First Amendment rights, affecting the ACLU itself by discouraging whistleblowers, potential clients, and others with an interest in confidentiality from communicating with the organization. It says "the government's searches of the mass call-tracking database...impose a far-reaching chill on Plaintiffs' First Amendment activities by discouraging vital sources of information from coming forward."

In today's column, I consider President Obama's defense of the phone record program.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • sarcasmic||

    fuck

  • Neoliberal Kochtopus||

    yeah!

  • sarcasmic||

    you

  • Neoliberal Kochtopus||

    yeah!

  • sarcasmic||

    that's

  • Neoliberal Kochtopus||

    yeah!

  • sarcasmic||

    why

  • Neoliberal Kochtopus||

    yeah yeah yeah!

  • BuSab Agent||

    The third party doctrine is utter horse shit. It's like saying because I consented to having sex with Bob, it's now okay for Tom, Dick and Harry from the government to have sex with me whether or not I consent.

  • Neoliberal Kochtopus||

    Not even close.

  • sarcasmic||

    It's more like if you fuck Bob in the ass, then Tom, Dick and Harry from the government can sample the semen.

  • ||

    I does appear that we will truly never get the 4th Amendment back until the Nazgul revisit that mess of judicial activism that is third party doctrine.

    As it stands, it essentially nullifies 4A.

    I'm not a lawyer (thank god), but I do not understand how 4A came to be about privacy. It's about when the man can search and seize your shit. I see how privacy could figure into it, but I see it first and foremost being about property rights as they pertain to government investigations. What you tell a third party about your shit shouldn't figure into that equation at all.

  • Neoliberal Kochtopus||

    If we had the Fourth Amendment you seem to want, though, then asking the phone company for records would be clearly constitutional, because as you said, the Fourth Amendment is about "when the man can search and seize your shit", not someone else's.

  • ||

    It would be the phone company's shit and I would sign a contract with them stating they will NOT release my records to anyone without a warrant.

  • Neoliberal Kochtopus||

    See below. your recourse against the phone company for releasing your records in violation of the contract is a civil tort. it doesn't implicate your Constitutional Rights.

  • ||

    It violates the phone company's constitutional rights.

    Corporations ARE people.

  • Neoliberal Kochtopus||

    A request for records violates the phone company's rights?

    Sorry, no. No more than a police officer merely asking to enter your residence violates yours. You're free to tell him to sod off and get a warrant, or you're free to invite him in.

  • ||

    And what if the phone company says no to the request?

  • Neoliberal Kochtopus||

    Then you have to get a warrant.

    If I'm missing some fact here where the government is stealing the phone company's records without consent, I must have missed it. As I understand the program, routine requests are sent to all the major telecoms and players in the Information Industry, and those entities are complying with the requests.

  • Neoliberal Kochtopus||

    Oh I see the problem. The carriers are under court order to provide the records.

  • ||

    Saying they are under penalty of law if they do not comply.

  • SomeGuy||

    corporations are not people....not sure where you got that from

  • Anonymous Coward||

    The Fourth Amendment is dead letter and has been for some time. The drug warriors killed it, dumped some limestone on the corpse, and then pissed in the hole.

    The "expectation of privacy" emerged from Katz v. U.S. (1967), about a bookie who used a public payphone to send bets from LA to Boston. Little did Mr. Katz realize, the FBI bugged the payphone. Katz was convicted for illegal gambling. The Nazgul (by and through Potter Stewart) held that because Katz entered the booth, closed the door behind him, and put money in the phone, he that his conversations would remain between him and his fellow bookmakers.

    Had they applied the third party doctrine, that decision would have come out entirely differently.

  • ant1sthenes||

    "As it stands, it essentially nullifies 4A."

    As it stands, it seems like it essentially nullifies NDAs, unless Party A personally hands over any confidential data to Party B. Basically, making something available to a third party (like an ISP) is treated the same as making it public. Seems like something a shit-stirring lawyer could use for fun, but what do I know?

  • Jordan||

    And now Shreeeek has a sad.

  • John C. Randolph||

    The Supreme Court has said the Fourth Amendment does not apply to the numbers you call and from which you receive calls because you have voluntarily divulged this information to the phone company and therefore no longer have a reasonable expectation that it will remain private.

    Divulging it to the phone company isn't the same thing as divulging it to anyone and everyone. There's a perfectly reasonable expectation of privacy here, and the phone company has a moral duty to treat that information as confidential to the customer.

    The Supreme Court, at the end of the day, is nothing but a pack of government shysters inventing rationalizations for usurpation.

    -jcr

  • Neoliberal Kochtopus||

    the phone company has a moral duty to treat that information as confidential to the customer.

    Says who? What are we going to have, phone company-client privilege now?

  • ||

    If I sign a contract with them to that effect, yes.

  • Neoliberal Kochtopus||

    Then you can sue the phone company for breach of contract. I fail to see how the Fourth Amendment commands the government honor your contract with another party.

    As a parallel example, let's say I sign a confidentiality agreement to remain silent on knowledge I may have on a corporation's malfeasance, and in exchange I get a million dollars. The government can come and ask me to break that silence if they initiate a civil or criminal suit on that malfeasance. I can either remain silent and keep my million, or I can speak and risk a breach of contract action from the corporation. What isn't clear to me is why the government is restrained from asking me to speak out. I don't get that at all.

  • ||

    I fail to see how the Fourth Amendment commands the government honor your contract with another party.

    What are you talking about? They aren't. They are required a warrant to view the phone company's data.

  • Neoliberal Kochtopus||

    Records the phone company generates as a result of doing business with you are the phone company's property, not yours. The phone company is free to do with its property what it wants, and if it wants to comply to government requests by releasing their property, I fail to see how that implicates the Fourth Amendment.

  • ||

    The company doesn't want to release the data, because it's not in the company's best interest to betray its customers trust. It is being told it must and being told it must without a warrant. THAT is unconstitutional.

  • Neoliberal Kochtopus||

    It is being told it must and being told it must without a warrant. THAT is unconstitutional.

    I would need to see some evidence of this, because that is not my understanding of what is happening here.

  • Cyto||

    Then you are not paying attention. Not only are phone companies required to divulge the information without a warrant, they are prohibited from talking about it as well. Related programs dealing with email and internet traffic have caused a few privacy-oriented email providers to pull the plug on their business and publicly proclaim the reason for doing so. But not any of the details of what the government was requiring them to do. Because it would be illegal for them to divulge the secret, warrantless requests.

  • DJK||

    Moreover, they are prohibited by law from signing contracts to the effect that FdA suggests.

  • DJK||

    Are you even paying attention? This is exactly what is happening.

  • Anonymous Coward||

    I fail to see how the Fourth Amendment commands the government honor your contract with another party.

    The Fourth Amendment doesn't, but Article I, Section 10 does

  • ||

    I can't call up the phone company and inquire about who my ex-wife's been talking to lately. Ask yourself why that is. Then ask yourself why the situation is any different if a government agent wants to know who she's been talking to.

  • Neoliberal Kochtopus||

    You actually CAN call the phone company and ask. They just aren't obligated to cooperate. The government CAN ask the phone company as well, and the phone company is not obligated to cooperate. The fact is they do.

  • Cyto||

    You are mistaken. They are required by law to cooperate. And to keep mum about what information was requested. That's the whole point. Why do you think everyone in the liberty community was so up-in-arms about the USA Patriot Act. (Hint: it wasn't just because of Bush).

  • DJK||

    Not only are they not obligated to cooperate with your request about your wife's use, they are forbidden from doing so by legal force.

  • Death Rock and Skull||

    Clearly this Neoliberal Kochtopus fuckhead has never heard of 'Agency'.

  • Westmiller||

    I agree entirely with the ACLU brief, though I'm not enamored with their *quantitative* pleas on the Fourth Amendment.
    In principle, the 4th protects all "effects", with a singular exception: probable cause of a crime. Dialing is a human "effect", as the argument describes all of the possible effects and consequences.

    What needs to happen is a total reversal of Smith's "expectation" and "third party" rules, which are violations of the *conditional* contracts we all enter into with providers.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Video Game Nation: How gaming is making America freer – and more fun.
  • Matt Welch: How the left turned against free speech.
  • Nothing Left to Cut? Congress can’t live within their means.
  • And much more.

SUBSCRIBE

advertisement