Julian Sanchez Rebuts Pilon & Epstein's NSA Defense


Cato Institute

As I noted last Thursday, Cato Institute legal scholar Roger Pilon and NYU law professor Richard Epstein defended the National Security Agency's phone record dragnet in a recent Chicago Tribune op-ed piece. Yesterday Reason Contributing Editor Julian Sanchez, a privacy specialist at Cato, rebutted Pilon and Epstein's essay, saying he felt a need to respond directly because "some people…have mistakenly taken this to mean that 'Cato' supports the NSA program." Sanchez makes some of the same points I did. He notes, for example, that Pilon and Epstein are wrong to think a warrant is required to link numbers in the NSA database with names: That information is generally a matter of public record and in any case can be obtained via national security letters, which do not require judicial approval. And like me, Sanchez thinks it is "rather strange" for Pilon and Epstein to emphasize the lack of evidence that the phone record database—the very existence of which was a secret until the week before last—has been abused. He notes that "the rampant abuses uncovered by the Church Committee…had in many instances gone undisclosed to the public for decades."

Pilon and Epstein also claim that information from the NSA's comprehensive phone record collection "can be used only for national security issues." Not so, says Sanchez: 

Under 50 USC §1801, the minimization procedures governing information acquired from electronic surveillance shall "allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes." As the FISA House Report makes clear, this does not refer to terrorism or espionage related crimes, which can already be retained and disseminated as "foreign intelligence information," but rather to information about crimes "totally unrelated to intelligence matters."

Sanchez quotes a decision in which the U.S. Court of Appeals for the 8th Circuit notes that the Foreign Intelligence Surveillance Act "specifically authorizes the retention of information that is 'evidence of a crime,' and provides procedures for the retention and dissemination of such information." The court adds that "there is no requirement that the 'crime' be related to foreign intelligence."

Sanchez also faults Pilon and Epstein for stating that the mass collection of telephone metadata is "on secure footing under the Patriot Act," noting that several legal authorities, including an author of that statute, disagree. As for the constitutionality of the program, Sanchez notes that it rests on the "third party doctrine," which holds that information voluntarily divulged to others is not protected by the Fourth Amendment. That position, he says, "has long been widely condemned as mistaken and incoherent by legal scholars, and it is especially strange to see it favorably invoked by two libertarians." And even if we take the third party doctrine as a given, he says, the massive nature of the NSA's phone record grab raises issues similar to GPS tracking of vehicles, which at least five members of the Supreme Court think violates reasonable expectations of privacy, regardless of how it is accomplished.

Sanchez questions Pilon and Epstein's claim that the phone record database made it possible to "discern the pattern that let it thwart the 2009 New York subway bombing plot by Colorado airport shuttle driver Najibullah Zazi." For more on that frequently heard defense of the NSA program, see Nick Gillespie's recent refutation.