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.  

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  1. Looks like some of the older boys at Cato have been rubbing Julian’s face in the dirt.

    1. They should’ve just fired him.

  2. I’ve said it before and I’ll say it again, fuck the Tribune’s editorial board. “Obama’s from Chicago so we must defend him at all costs” seems to be the attitude.

    1. To them and to Epstein and Pilon,

      Fuck off, slavers.

  3. 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.

    Absence of evidence != evidence of absence

  4. Here is what is so disappointing. Epstein knows every point Sanchez makes, especially the point about FISA allowing for the retention of evidence of a crime. No way does Epstein not know that. And yet, Epstein still claimed “that information from the NSA’s comprehensive phone record collection “can be used only for national security issues.” That can’t be a mistake on Epstein’s part. That is an outright lie.

    Why the hell is a guy like Epstein out lying in support of this? That is really sad and depressing. The fact that he was lying in CATO is bad enough. But CATO has been pretty obviously a pro beltway hack machine for a while now. But I really thought Epstein was honest.

    1. I don’t think Cato is really that pro-beltway, this was more of a Stossel moment where someone who is usually a consistent libertarian just comes out of nowhere with a statist argument.

      1. Agree: I get the CATO daily podcasts and all of those on this topic have consistently opposed the NSA stuff.

    2. I am a cynic but even I have been surprised on how many people have come out of the closet and have supported the NSA. “Et tu, Brute?”

      CATO needs to move out of Washington DC while it still has any respect.

      1. CATO is whatever it is. But Epstein lying is a real problem. That is a lie. Epstein of all people knows the law. I could forgive some journalist for not understanding the law. They are generally morons who don’t know anything. But Epstein? One of the best legal scholars of his generation getting the law wrong on such an obvious point? No way. He lied. And that is terrible.

        1. When has Epstein not been a statist fuckstick?

          1. Since forever. Do you know anything about Epstein? Clearly you don’t you wouldn’t say something that stupid.

          2. The guy pretty much invented most of the arguments used against imminent domain and employment discrimination laws.

            1. doesn’t matter.. if you’re useless at critical junctures as this to make a push against big government and the inevitable abusive nature, down the road if not now as cato seems to be arguing, then you are useless.

              doesn’t matter what you did in the past, we are where we are now. you gonna start playing favors and seniority now? try congress, you would do great. libertarianism is about being 100% competitive all the time, because we have no shortage of new blood. feel free to go statist any time, because you will be booted off instantly, as this ep-whatever i don’t care to name will, a mark of beast from the eternal records keeping internet, just watch. what matters is now, be useful or be useless. be a patriot or go on the guilotine

        2. He did it for the greater good, which makes it a-ok.

  5. “or is about to be committed”
    Minority Report in real life.

  6. The link to Sanchez’s essay is broken.

    1. Harder for the NSA to track that way.

  7. Also, what about “domestic terrorism”?
    Given the vagueness of the definition of terrorism, it’s not inconceivable that so-called domestic terrorism could be considered a national security concern, which would authorize the government to snoop on the phone calls of anyone labeled a domestic terrorist. That definition is already vague enough to encompass groups like the Earth Liberation Front (which engages in vandalism), and patriot militia groups. It may be broad enough to encompass a group like the Oathkeepers already.

    It’s not inconceivable to see a day when any domestic group that uses rhetoric about “direct action” or “resistance” might be surveilled. That could easily include groups like Occupy Wall Street, which certainly has plenty of anarchist fringe members and elements willing to advocate violence.

    So we go in a series of short hops from the NSA spying on foreign terrorists to the NSA spying on domestic political dissenters.

    1. Anything can be a “national security concern”. Many terrorists engage in criminal activity to raise money. The line between a terrorist and a gangster is pretty thin and often non-existent.

    2. Hazel,

      Do you think that the NSA doesn’t already spy on those types of organizations? I would be surprised if they didn’t.

      1. I saw a meme recently that made me laugh and very sad at the same time. It was just the prism logo and it said “if you’re not already on a government watch list, you should be ashamed of yourself”

      2. I would be surprised.

        There is a long-standing historical separation between foreign intelligence and domestic policing in America. Or there is supposed to be. It was something that my high-school teachers emphasized as something that made America a freer country that others.

        The CIA is only supposed to be allowed to engage in espionage outside of the country. Anything internal is supposed to be handled by the FBI.

        Now, I would not be surprised if the FBI was tracking the activities of the ELF, patriot militias, etc. I would EXPECT them to. But if the NSA was spying on them that would be a very big deal. The FBI is subject to all sorts of legal restrictions and oversight that the NSA is not.

  8. Weigal follows his Journolist 2.0 orders, and a perfect little shill chimes in to bash Showden with insinuation.

    1. Weigal, one of the biggest concern trolls and useful idiots writing today, calling someone a useful idiot is quite ironic to say the least.

    2. Wow is he a disingenuous turd.

      This is nitpicking, but only a few people in the legislative branch rushed to call Snowden a “traitor.” Dianne Feinstein did, and Peter King did

      Just because two people in Congress, one of whom is very powerful and part of the President’s own party call you a “traitor” doesn’t mean you have anything to worry about.

    3. Oh the comments…

      Of course, Snowden is going to inflate the “government is after me” claim. He has to be sure that he stays a news headline. This is as much about his ego as it is about anything else. The more I read about this man, the more pathetic he becomes. He is either criminally naive or an expert at playing the paranoid in America and around the world for all they are worth.

      1. Snowden is a bad guy, so everything Obama did is just great. That is the argument. And that more than anything is why people angry about this should be ignoring Snowden.

      2. That’s the one.

  9. …have mistakenly taken this to mean that ‘Cato’ supports the NSA program

    I took it to mean that. Still not convinced that I wasn’t mistaken.

  10. And word do Sanchez, if that is all the beard you can grow, buy a razor and wait until you are older. That is a sorry attempt at a beard.

    1. It looks like he shaved it that way on purpose. It’s hard to tell since his face is so sickeningly soft looking.

      1. The horrible things hipsters have done to beards.

    2. I was proud when I finally could grow a mustache at the age of thirty one. As a fellow white Hispanic, born to a culture that values a good, hard driven ‘stache (you should have seen my dad’s just a few months after we saw Smokey and the Bandit at the Drive-In), Sanchez has my sympathy.

  11. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”

    The power and beauty of this statement greatly impressed me the first time I read it as a child in grade school. It was refreshing in it’s succinctness. It recognizes the sacredness of the individual and of privacy. It is the greatest ally of the individual against the power of the state in history. It is the founding fathers giving a great big ‘fuck you’ to tyranny.

    My first reading of the BOR was love at first sight, a love affair with our constitution that goes on to this day. Over the years I have taken note that the parts of it that I loved the most are the most hated by the Diane Feinsteins and Lindsey Grahams of the world.

    It is succinct, direct and absolute. It is powerful. Inversely, to attack it or defend those who violate it, one must adopt the most weasely, disingenuous, sophistry possible.

    Anyone who does not soundly and immediately condemn secret courts, self authorized executive actions, warrantless searches, denial of due process….should be dismissed, told fuck you, and have their lip busted.

    I cant finish this because someone else needs this computer.

    Y’all get the idea.

  12. Are jack-boots the new DC cocktail party fashion statement?

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