By Sadia Ahsanuddin
“An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.”
~Thomas Jefferson, Notes on the State of Virginia
On August 9, 2013, President Obama addressed the public in an attempt to placate fears regarding the National Security Agency’s collection of telephony metadata in bulk and the intrusions the intelligence community has recently made on civil liberties and privacy. Although President Obama called for more transparency and sought to make the public more “comfortable,” he was also clear that he was not planning on terminating the phone logging program, opting to modify it instead and arguing that the media had distorted the nature of the surveillance programs. Obama stated that he had confidence in the programs and acknowledged that “we have to strike the right balance between protecting our security and preserving our freedoms.” The administration and many of our countrymen have swung so far in the direction of national security, however, that they sacrifice the “free principles” enshrined in our Constitution.
The revelations regarding the surveillance practices of the NSA were made by The Guardian’s columnist Glenn Greenwald on behalf of Edward Snowden, who worked at the NSA for four years for outside contractors. As per the revelations, the NSA (long referred to wryly as the “No Such Agency”) has been encroaching upon the privacy of civilians. By virtue of the top-secret Prism program, the NSA has direct access to the servers of Google, Apple, Facebook, Yahoo, Skype, AOL, and other Internet companies. The surveillance under the Prism program includes the content of communications as well as transactional information. Although Prism operates with the assistance of the companies, the companies that were willing to communicate with The Guardian indicate no knowledge of the program.
Yet another revelation consisted of a court order from the Foreign Intelligence Surveillance Court (FISC), granting the NSA the right to indiscriminately collect telephony metadata of millions of Verizon customers for phone calls made in the United States and abroad. The information collected includes the numbers of both entities on a call, the location, and duration of the phone call. In 2005, USA Today disclosed that President George Bush had granted the NSA power to eavesdrop on targets in the United States without the warrants required by the Foreign Intelligence Surveillance Act of 1978. And in 2006, USA Today revealed that the NSA was collecting phone records of tens of millions of Americans “using data provided by AT&T, Verizon and BellSouth…” Until now it was not clear whether President Obama was continuing the practice. The collection of telephony metadata has garnered a lot of attention.
There are attempts to resist the emergent surveillance state. In response to the collection of telephony metadata, the First Unitarian Church of Los Angeles, the Council on American-Islamic Relations Foundation, Inc., and 17 other organizations filed a complaint in the northern district of California. The coalition is represented by the Electronic Frontier Foundation (EFF). Although the collection of telephony metadata may constitute unreasonable seizures under the Fourth Amendment, the plaintiffs allege that the collection of telephony metadata, referred to as the Associational Tracking Program, directly impinges the freedom of association, protected by the First Amendment to the Constitution. According to the complaint, the dragnet electronic surveillance “discloses the expressive and private associational connections among individuals and groups,” because such information is deducible from the aggregate communication history of an individual. The freedom of association has long been upheld by American jurisprudence; for instance, as the EFF noted, in the 1958 Supreme Court case NAACP v. Alabama, the Supreme Court ruled that the NAACP does not have to hand over its membership in litigation because that would violate the First Amendment.
On August 9, 2013, the Obama administration released a White Paper providing the legal justification for the Associational Tracking Program under Section 215 of the Patriot Act, codified at 50 U.S.C. section 1861. The administration claims the information is important for discovering whether any known or unknown operatives have been in contact with terrorism suspects abroad. The administration claims the authority to undertake the collection of telephony metadata in bulk through the authorization for the collection of “business records,” which permits the FBI to seek a court order for business records “relevant to an authorized investigation of international terrorism.” According to Cindy Cohen at the EFF, the Obama administration stretched the terms “tangible objects” and “relevance” beyond recognition and derive the legitimacy of collecting and storing telephony metadata from the fact that “nothing in the text” of the Patriot Act disallows it.
However, as Justice Scalia noted in the U.S. Supreme Court case Whitman v. American Trucking (2001), Congress “does not…hide elephants in mouse holes.” In other words, the plain words of the Patriot Act does not indicate that Congress intended for the NSA to attempt turf expansion by collecting telephony metadata in bulk, the vast majority of which cannot be proved to be relevant to any authorized investigation. Indeed, Rep. Jim Sensenbrenner, author of the Patriot Act, issued a letter on June 6, 2013, stating that he does “not believe the released FISA order is consistent with the requirement of the Patriot Act.” Significantly, Sensenbrenner also asked: “How could the phone records of so many innocent Americans be relevant to an authorized investigation as required by the Act?”
And yet, the Obama administration remains confident of the legality of the surveillance program and thus exhibits commitment to the emergent surveillance state. In order to rebuild public trust and evaluate intelligence-gathering practices, Obama announced the formation of an outside review panel, to be chosen by Director of National Intelligence James Clapper. Delegating the DNI to choose the review panel is striking, however, because Clapper misleadingly stated at a Senate Intelligence Committee hearing on March 12, 2013 that “no,” the NSA does not collect any kind of data on millions or hundreds of millions of Americans. (Clapper later admitted that he provided the Senators with “erroneous” information.) Should the public expect the executive branch to reform itself? It is all the more alarming that President Obama apparently has the support of leading Congressmen: a spokesman for Speaker John A. Boehner said, “Transparency is important, but we expect the White House to insist that no reform will compromise the operational integrity of the program.” Is the commitment to these programs prudent? How far are we from a “turnkey totalitarian state,” in the words of one former NSA official?
In 1975, when the NSA and CIA’s intelligence gathering practices were unveiled at the Church Committee hearings, Committee Chairman Sen. Frank Church said that if a dictator ever took over, the technological capacity of the intelligence community “could enable it to impose total tyranny, and there would be no way to fight back.” As such, Sen. Church emphasized effective oversight and the preeminence of the rule of law. Although the administration will attempt to normalize surveillance practices in the public eye, the public must resist, lest we end up, not with a democracy, but an “elective despotism” that exempts the executive branch from the law and renders the liberties enshrined in our Constitution mere historical artifacts.
Sadia Ahsanuddin is a legal researcher based in New York City and a Harvard University alumna.