Transparency

How Probable Cause Got Replaced by the 'Government Need' Standard

The NSA can still obtain the phone calls, emails, and text messages of all Americans under the USA Freedom Act.

|

Occupy Global/Flickr

Last week, Republicans and Democrats in Congress joined President Barack Obama in congratulating themselves for taming the National Security Agency's (NSA) voracious appetite for spying. By permitting one section of the Patriot Act to expire and by replacing it with the USA Freedom Act, the federal government is taking credit for taming beasts of its own creation.

In reality, nothing substantial has changed.

Under the Patriot Act, the NSA had access to and possessed digital versions of the content of all telephone conversations, emails, and text messages sent between and among all people in America since 2009. Under the USA Freedom Act, it has the same. The USA Freedom Act changes slightly the mechanisms for acquiring this bulk data, but it does not change the amount or nature of the data the NSA acquires.

Under the Patriot Act, the NSA installed its computers in every main switching station of every telecom carrier and Internet service provider in the U.S. It did this by getting Congress to immunize the carriers and providers from liability for permitting the feds to snoop on their customers and by getting the Department of Justice to prosecute the only CEO of a carrier who had the courage to send the feds packing.

In order to operate its computers at these facilities, the NSA placed its own computer analysts physically at those computers 24/7. It then went to the U.S. Foreign Intelligence Surveillance Court and asked for search warrants directing the telecoms and Internet service providers to make available to it all the identifying metadata—the times, locations, durations, email addresses used and telephone numbers used—for all callers and email users in a given ZIP code or area code or on a customer list.

The first document revealed by Edward Snowden two years ago was a FISA court search warrant directed to Verizon ordering it to make available to NSA agents the metadata of all its customers—more than 113 million at the time. Once the court granted that search warrant and others like it, the NSA computers simply downloaded all that metadata and the digital recordings of content. Because the FISA court renewed every order it issued, this arrangement became permanent.

Under the USA Freedom Act, the NSA computers remain at the carriers' and service providers' switching offices, but the NSA computer analysts return to theirs; and from there they operate remotely the same computers they were operating directly in the Patriot Act days. The NSA will continue to ask the FISA court for search warrants permitting the download of metadata, and that court will still grant those search warrants permitting the downloading. And the NSA will continue to take both metadata and content.

The Supreme Court has ruled consistently that the government must obtain a search warrant in order to intercept any nonpublic communication. The Constitution requires probable cause as a precondition for a judge to issue a search warrant for any purpose, and the warrant must "particularly (describe) the place to be searched, and the persons or things to be seized." Because this is expressly set forth in the Constitution itself, Congress and the president are bound by it. They cannot change it. They cannot avoid or evade it.

Probable cause is evidence about a person or place sufficient to permit a judge to conclude that evidence of a crime will probably be found. Both the Patriot Act and the USA Freedom Act disregard the "probable cause" standard and substitute instead a "government need" standard. This is, of course, no standard at all, as the NSA has claimed under the Patriot Act—and the FISA court bought the argument—that it needs all telephone calls, all emails, and all text messages of all people in America. Today it may legally obtain them by making the same claim under the USA Freedom Act.

When politicians tell you that the NSA needs a court order in order to listen to your phone calls or read your emails, they are talking about a FISA court order that is based on government need—not a constitutional court order, which can only be based on probable cause. This is an insidious and unconstitutional bait and switch.

All this may start with the NSA, but it does not end there. Last week, we learned that the FBI is operating low-flying planes over 100 American cities to monitor folks on the streets and intercept their cellphone use—without any search warrants. Earlier this week, we learned that the Drug Enforcement Administration has intercepted the telephone calls of more than 11,000 people in three years—without any search warrants. We already know that local police have been using government surplus cell towers to intercept the cellphone signals of innocent automobile drivers for about a year—without search warrants. 

How dangerous this is. The Constitution is the supreme law of the land. It applies in good times and in bad, in war and in peace. It regulates the governed and the governors. Yet if the government that it regulates can change it by ordinary legislation, then it is not a constitution but a charade.

Suppose the Congress wants to redefine the freedom of speech or the free exercise of religion or the right to keep and bear arms, just as it did the standards for issuing search warrants. What is the value of a constitutional guarantee if the people into whose hands we repose the Constitution for safe keeping can change it as they see fit and negate the guarantee?

What do you call a negated constitutional guarantee? Government need.

COPYRIGHT 2015 ANDREW P. NAPOLITANO. DISTRIBUTED BY CREATORS.COM

NEXT: Why Poor People Stay Poor

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.

  1. I’m dreading the 4th of July. It just seems morbid now.

    1. I would say it is Orwellian to celebrate freedom when you are not really free in the slightest, but the fourth has become more a day to fellate the military anyway.

    2. “I’m dreading the 4th of July. It just seems morbid now.”

      A few years ago a buddy and I stopped discussing “current” events at a July 4th Party when we realized that our conversation was interfering with the enjoyment of nearby party-goers.

      Ignorance is what allows many of us to enjoy ourselves.

      I like your moniker for its relevance and especially because you borrowed it from what Woody Guthrie wrote on his guitar. Well done.

      1. Thanks Charles!

    3. I wrote a whole thing that the squirrels ate.

      So I’ll just say – I don’t have anything I see worth celebrating any more, we won’t be doing anything (other than watching “John Adams” with the wonderful Paul Giamatti, cause it’s just so fuckin’ good).

      The US is over the cliff and on the way down – well past the point it could be recovered. He’s dead, Jim.

      I haz a sad :*(

      1. My comment was eaten by the wood-loving squirrles as well and I had to repost it.

        Your idea seems a good one, President-Elect Almanian (watching “John Adams” with the wonderful Paul Giamatti).

        1. There’s nothing electable about Almanian. Did you see his position on assault woodchoppers?

            1. Aren’t woodchoppers a form of dentures?

            2. Harley woodchoppers?

          1. This guy is illegal in New York:

            https://youtu.be/oI00MjKt1Vk

            1. That is an industrial strength wood chipper.

      2. Don’t blame the skwrlz!

    4. I stopped calling the the 4th of July. It’s Independence Day. It’s the day we traded the crown for the federal government.

      1. That statement might be the biggest nutpunch of the day.

        *knocks on woodchipper*

          1. Ummm…high velocity projectile at a curved surface that is bracketed on either side by femoral arteries.

            He’s either the dumbest man alive or the cup he is wearing is 15XL.

          2. Sarc,

            I see from a side article on that site that Sir Christopher Lee has died.

            *takes a moment of silence*

      2. You signed that ‘social contract’, buddy. Or your parents signed it for you.

        Well, that’s what the statists tell me . . . Hey, speaking of statists, the Christian Monitor wants to know why Hillary Clinton is labelled a ‘statist’.

    5. At this point I odn’t think many people celebrate their freedoms on the fourth, it’s just an excuse to get shit faced and watch fireworks.

      Not launch their own fireworks, in many places we’re not free to do that either, just watch fireworks launched by trained professionals.

      1. I remember a time several years ago in a town I lived in when the trained professionals set a pier on fire with fireworks, and then drove a fire truck on the pier to fight the fire, and then acted shocked when the fire-weakened pier collapsed and dumped the fire truck into the river.

        1. Way better than fireworks.

  2. Was talking with a co worker about this. Is it ok for the govt to copy and store the content, addresses and dates of everything delivered by the post office, Federal Express, UPS etc.? “Well, you gotta make trade offs and anyways, email is different from traditional mail” was his response. This from a guy, lawyer no less, that was outraged at Bloomberg’s stop and frisk policy.

    BTW, I’m not changing my handle only because it’s become a nice description of how the DOJ operates.

    1. It could be considered a “true threat” though, but hey, it’s your funeral subpoena.

  3. COPYRIGHT 2015 ANDREW P. NAPOLITANO

    The sad/funny thing is, when I first saw that at the lower edge of my vision, I read it as ‘COPYRIGHT 2015 ANDREW ?. NAPOLITANO’

    1. What if Andrew Napolitano were copyrighted? What if he asked a lot of questions anyway? What if he secretly had a whole collection of woodchippers ready to be deployed on his command?

      HMMMM? What if??

      1. I actually read that column twice to see if I somehow became numbed to the staccato barrage of questions and just couldn’t see them any more.

      2. Wow! I want some too!

  4. The WAR THAT SHALL NOT BE NAMED is linked on drudge now, FWIW

    1. It was the War of the Golden Stool, wasn’t it?

      1. Wow! That was a real thing.

  5. The Constitution requires probable cause as a precondition for a judge to issue a search warrant for any purpose, and the warrant must “particularly (describe) the place to be searched, and the persons or things to be seized.” Because this is expressly set forth in the Constitution itself, Congress and the president are bound by it. They cannot change it. They cannot avoid or evade it.

    You don’t get out much, do you?

    1. That old rag also says something about federal powers being enumerated and can’t be construed to deny rights retained by people. And any powers not specifically delegated to the Feds in the Constitution are reserved to the States and People.

      Blah, blah, blah…

      1. Dude! It’s like, a hundred years old.

      2. Specifically means generally.

  6. Why bother with the courts & warrants when you can just issue your own subpoenas instead?

  7. The Feds have basically devolved to using the same methods as the sovereign citizens movement – using dubious readings of law to remove themselves from having to play by the law’s rules.

  8. What if Hitler escaped to Brazil and started taking names at a federal university?

    1. What if Hitler’s DNA escaped to Brazil and the Nazi’s sought recreate the exact same family structure in an effort to recreate Hitler for a new generation?

      1. A Millennial Hitler?

        1. …who wears his mustache ironically.

          1. OCCUPY POLAND

            1. Vee vill make zem veer nekk beards!

        2. A Bush or Clinton Hitler?

        3. A Jurassic Park Hitler?

  9. iCarl, if you’re out there, I got your email.

  10. The Supreme Court has ruled consistently that the government must obtain a search warrant in order to intercept any nonpublic communication.

    And the document that created the Supreme Court (and the rest of Federal Gov’t) says, quite explicitly, that the government needs a warrant to conduct a search on a citizen, implicitly outlawing blanket searches. But that doesn’t seem to matter.

    1. Nit-picking: the requirement for a warrant is not in the Constitution but in the fourth amendment.

      I think it’s actually an interesting distinction. Madison was the primary author of the constitution and the primary editor of the BOR. The general interpretation is that he was persuaded that the Constitution did not offer protections for the people and moved from an opponent of a BOR to one of its primary advocates.

      1. Nit-picking: the requirement for a warrant is not in the Constitution but in the fourth amendment.

        Amendments become part of the constitution when they’re ratified. Thus it is in the Constitution. It may not be in the initial enumerated articles, but it is in the constitution.

        1. Oh, I agree. I just think the timeline presents an insight into the way some of the Framers’ thinking evolved. Despite the role the Writs of Assistance played in the revolution, Madison originally believed that a government created by a written constitution did not require a BOR. However, he was persuaded that it did and so provides evidence that even the main author of the original constitution came to see that any government can abuse its power.

          1. However, he was persuaded that it did and so provides evidence that even the main author of the original constitution came to see that any government can will abuse its power.

            ftfy

            All governments will abuse their power. It’s human nature.

            1. What I always found terrifying/depressing was that it was a recognition that even clear (for the time) language would be twisted and then exploited to expand government power. All this shit – no matter how big or small the debate – always seems to begin with a destruction of plain meaning.

    1. Where Seinfeld and I disagree is that I don’t see “political correctness” as being inherently bad

      And here’s your sign, Dean….

      /Bill Engvall

      1. You might remember Dean from his joke about Romney’s rather swarthy grandson, and his “nonpology when he was called out on it.

        Because again, transgressive humor is A-OK when in service to progressive ideology.

        Christ, what a cunt!

    2. “And where I greatly disagree with Seinfeld is that based on my experiences of performing on college campuses, I believe young adults for the most part really get racism, sexism, and other — isms.”

      Yeah, because they’ve underwent p.c. indoctrination since kindergarten, you asshat.

      1. “I believe young adults for the most part really get racism, sexism, and other — isms.”

        *** scratches head ***

        Jism?

        1. Statist Priapism?

        2. *** scratches head ***

          Jism?

          Only with affirmative consent.

      2. From what I’ve seen, they don’t seem to get sophism.

        1. Solipsism, though.

          1. Nice.

            1. Onanism is not a problem for them.

    3. . In fact, on several occasions, college students have come up to me after shows to explain that they were “concerned” with one of my jokes.

      “I’m concerned about this joke you told”
      “Go fuck yourself”

      How else would a real comedian address that concern?

      1. Those poor, poor little babies.

      2. “Go fuck yourself”

        straffinrun. This is my goto response for everything. =)

    4. Where Seinfeld and I disagree is that I don’t see “political correctness” as being inherently bad — unless it goes way overboard

      Doesn’t the term “politically correct” imply going overboard? Otherwise it’s just called politeness.

      Why should any audience have to change their comedy tastes to fit a comedian’s act?

      Yeah, get that strawman. Get him.

      1. “Why should any audience have to change their comedy tastes to fit a comedian’s act?”

        It’s as if he is completely oblivious to the fact that THE AUDIENCE CHOSE TO PAY MONEY TO SEE THIS ACT.

        1. Why would you pay money to laugh? You could just read the Federal Register.

        2. It’s as if he is completely oblivious to the fact that THE AUDIENCE CHOSE TO PAY MONEY TO SEE THIS ACT.

          Maybe his audiences are all hostages, forced to listen to his horseshit against their will. Actually that’s the only explanation I can think of for why anyone would listen to him.

  11. Enumerated powers and unlimited rights have given way to enumerated rights and unlimited powers.

    1. We’re still a half hour away from the usual time, 5K

      1. Reason has been pretty good to commenters, allowing us to spout off unmolested and taking abuse, sometimes even wandering into the comments section and sparring with us. We’ve basically been well-serviced, even though we, the choir, aren’t the target audience.

        But one simple request, and you people couldn’t follow it. No, wouldn’t follow it. And now, thanks to you, no more Links. And I never got to post a first comment, I mean really post a first comment. So, screw all of you.

        1. Sure, you always fatten the cattle before slaughter.

          Hit ‘n Run was always a honeypot!

          1. A honeypot willed with naught but vinegar and vitriol?

        2. And now, thanks to you, no more Links.

          Fist, I hope this is a poor attempt at humor.

          1. I think my attempts at humor have been pretty consistent. And really it should be a wake up call to all of you, that what is given can be taken away.

            1. Yep.

              “Once Zhuang Zhou dreamed he was a butterfly, a fluttering butterfly. What fun he had, doing as he pleased! He did not know he was Zhou. Suddenly he woke up and found himself to be Zhou. He did not know whether Zhou had dreamed he was a butterfly or a butterfly had dreamed he was Zhou. Between Zhou and the butterfly there must be some distinction. This is what is meant by the transformation of things.”

      2. *wipes brow*

        Whew, that’s a relief! cuz I can’t take the drama that was yesterday’s p.m. links twice in 12 hours.

        1. It’s been almost 16 hours.

          1. OK, time-telling has not been my strong suite this morning. I’m a little jet-lagged….

    2. WC5000….love the handle. Gonna have to get one of those chippy things, perhaps at a local arms dealer like Tractor Supply or the CO-OP.

  12. So, honest question – where does the FIFSA court even fall in the judiciary? What’s its jurisdiction?

    It seems like it ranks above the Supreme Court at this point. At the very least, it’s ignoring all precedent set by the highest court in the land.

  13. I first learned of the FBI’s spy planes several weeks ago, before it became public knowledge.

    At the time I wasn’t surprised given our government’s lack of respect for the Constitution. I was only surprised later when I discovered it was not already public knowledge.

    The FBI seems to operate these spy planes out of small municipal airports located near major cities.

    I know the location of one such plane, but I fear the ramifications if I reveal it.

  14. Molotov cocktails tell no tales.

    1. Dude, you are so getting a visit from the federal goons for that one…..or were you suggesting we have a drink?

  15. Gov need is some dangerous scary shit.

    Didn’t Paul Ryan just say something to the effect that we’ll have to pass the bill to figure out what is in it? I mean what the fuck?

    I tell you what: they are a bunch of ruling class mobsters.

  16. I remember when the Patriot Act first came out and it was stated ad nauseam that the only telephone or email communications that could be monitored were those between a party in the US and a party outside the US.

    Whatever happened to that significant parameter?

  17. Maybe the Alt-Text explains why Vendetta is wearing an NRA hat in an NSA article…

    CB

  18. My classmate’s step-aunt makes $61 hour on the internet . She has been fired from work for nine months but last month her pay check was $12801 just working on the internet for a few hours. try this out.
    GO TO THE SITE TEC NEXT TAB FOR MORE INFO AND HELP
    ????? http://www.workweb40.com

  19. I always knew this day would come – the humorless government goons in dark glasses, ramming down the door of our happy sleep over.

  20. Where do they find the people to do this stuff? What kind of American takes those jobs?

  21. I feel the only value left in our Constitution

    is the right for states to hold constitutional conventions to over rule D.C., and to allow foreign governments to accept any new goverment We the People see fit to create after we have had enough of the current Fascist structure!

Please to post comments

Comments are closed.