Imagine that your neighbor had the idea it was his responsibility to protect the community by ensuring no criminal conspiracies were hatched among his neighbors. To carry out his plan he might decide he should monitor his neighbors’ communications. He wouldn’t listen in on your conversations, but he would secretly reach into your mail box, open up your phone bill and record the phone numbers of everyone you were calling.
Probably you weren’t calling al-Qaida, and your neighbor would probably find nothing too embarrassing. Still, chances are you would find your neighbor’s zeal to be excessive and his activities an unjustified violation of your privacy.
If it were the police carrying out this search of your phone records, the intrusion would be even more chilling. Thus it was that the Founding Fathers wrote the Fourth Amendment, which establishes our right to be safe from search and seizure unless authorities have obtained a warrant from a judge.
This is the sort of surveillance that the National Security Agency has been carrying out in secret — at least until the secret was blown by the former government contractor Edward Snowden. Now a federal judge has ruled for the first time that the NSA’s vast data collection program is an unconstitutional violation of the Fourth Amendment. He wrote that James Madison would be “aghast” at the reach of the government into the private domain of ordinary citizens.
Special federal surveillance courts are supposed to rule on secret surveillance programs, and in the case of the NSA collection of metadata from phone records, 15 separate judges have ruled on 35 occasions that the NSA program was permissible. That history suggests that secret programs monitored secretly, without an advocate to defend the privacy interests of the public, are not likely to receive adequate oversight. It appears that a built-in bias in favor of the national security state has swayed the surveillance judges, tilting their rulings away from firm adherence to constitutional principles.
The federal judge in the recent case, Richard J. Leon of the District of Columbia, acknowledged that “significant national security interests” were at stake so he stayed his ruling until the case could be appealed. And yet his response to the NSA’s alleged violations was harsh. “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” he wrote.
Leon also questioned the worth of the NSA surveillance program, saying that the government had failed to cite “a single instance” where the collection of metadata had foiled an imminent attack, “or otherwise aided the government in achieving any objective that was time-sensitive.”
Protection of the public is the perennial justification for the violation of human rights. Leon found that the government could show no evidence that its privacy violations had any value for the purpose of protection. It appears that the government’s national security apparatus works on the assumption that any information it gathers, however it gathers it, has potential worth and so it should not be hindered in its surveillance. But unrestrained snooping into the private records of private citizens for some intangible potential security gain was not contemplated by the authors of the Fourth Amendment.
Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, has introduced a bill that would curb the NSA’s surveillance powers. He welcomed the ruling by Judge Leon. “Americans deserve an open and transparent debate about the constitutionality, efficacy and appropriateness of the government’s dragnet collection programs,” he said in a statement. “I welcome today’s district court ruling regarding the collection of phone metadata, particularly because the litigants were afforded the opportunity to participate in an adversarial process.”
Since Snowden’s revelations, the NSA’s spy programs have been subjected to an increasingly vigorous “adversarial process.” To protect the public from snooping that Leon said was “almost Orwellian,” an adversarial process is a good thing.
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