This 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.