On the NSA Surveillance Scandal and the Peculiar Mr. Edward Snowden I

I started writing this rant in response to the ranting (again, I don't mean this in a bad way!) of a liberal theological friend on my morning bus ride to work concerning the encroachment of government into the lives of private American citizens, the apparent ascension of “big brother,” and the larger irrationality of the “War on Terror” that has inspired the current round of NSA technological innovations.  I might further add that I mean to respond to the self-confident opposition of the NSA’s actions by the American Civil Liberties Union, an organization that I actively support financially and, yet, in this circumstance, find myself in substantial disagreement.  Like the other two major issues in which I have generated rants here (gun control and gay marriage), I think that the issues at stake in the surveillance of communications media to produce civil intelligence data in defense against lethal actions by domestic or foreign agents defy any simple explanation or means of resolution in relation to demands for privacy.  Rather, as with my previous rants, I plan to address this issue in a series of conclusions intended to arrive at a larger conception of the problems involved here.

1.  The NSA's collection of telephonic metadata does not violate the protections accorded to U.S. citizens through the Foreign Intelligence Surveillance Act of 1978 or its amendments and does not constitute an illegal search and seizure under the terms of the Fourth Amendment.

The collection of telephonic metadata (i.e. records held by telephone service providers on calls made and received by users, to the exclusion of actual surveillance of conversations) by federal authorities, under the authority of the Foreign Intelligence Surveillance Act of 1978 (FISA) and its subsequent amendments raises a number of valid constitutional concerns, specifically concerning the applicability of Fourth Amendment protections against illegal searches and seizures (i.e. accumulation of privately held property or personal information by law enforcement authorities for the purpose of obtaining a criminal conviction based on such evidence).  At issue here are the purposes served by the collection of metadata (in relation to the specific demands of accumulating intelligence on the actions of foreign agents, including American citizens actively working to achieve the military or intelligence collection goals of foreign governments or international non-governmental organizations like Al Qaeda) and the possible uses of accumulated metadata for purposes not authorized by FISA. 

            To begin, we need to be perfectly clear about what it is that federal authorities are engaged in collecting.  The National Security Agency (NSA) is collecting metadata, not engaging in electronic surveillance/eavesdropping on telephone conversations.  The latter is authorized by FISA, without prior issuance of a warrant from the review court established by FISA, under circumstances where there is a reasonable presumption that communications involve at least one party located outside of the United States.  Moreover, procedures exist within FISA for issuance of warrants by the FISA court to conduct direct electronic surveillance of foreign governments or agents of foreign governments. 

Metadata is different in nature than direct electronic surveillance.  Metadata includes records of telephone numbers from which a call has been made or received and the length of phone conversations, and it may also include the geographical location of each device (i.e. the location of a stationary land-line phone or the GPS coordinates of a mobile device).  The presumptive use of metadata by NSA consists of sorting through phone records to determine whether patterns exist for particular telephone accounts making or receiving calls from outside of the U.S.  In effect, NSA is attempting to uncover the planning of actions by organizations like Al Qaeda, in the U.S. or elsewhere in the world, by observing patterns of telephone communications by individuals in the U.S., including especially communications with individuals in other regions around the world. 

The key problem here concerns the scale of NSA’s metadata collection operations.  If I am to understand correctly, NSA is attempting to utilize computer software to facilitate the analysis of metadata collected, in effect, from every individual utilizing a telephone at any time anywhere in the U.S.!!  That is to say, the domestic call that I make to my mom tonight to remind her to double lock her doors because there has been a rash of break-ins in her neighborhood will be collected by NSA.  So will the international call that I make to a friend and former fellow grad student in Istanbul to find out how the recent anti-government protests are proceeding in her neighborhood.  For that matter, any call initiated from anywhere in the world that utilizes telephone network infrastructures based in the U.S., either to reach a party in the U.S. or simply as an intermediary, will potentially be collected by NSA. 

Such operations not only demand a massive investment in computer analytical equipment to crunch data generated from tens of millions of phone accounts each day, but also demands a significant investment in information technology technicians to develop screening protocols and in data analysis by skilled analysts seeking to identify suspicious patterns in order to generate a compelling case before the FISA court that probable cause exists to issue a warrant for electronic surveillance by NSA.  As a pure fiscal matter, this investment is nothing to sneeze at and remains a heavily guarded secret.  The Obama administration has apparently requested $48.2 billion for the National Intelligence Program, including certain intelligence collection operations by NSA, CIA, and other civilian intelligence agencies for fiscal year 2014 (see Cook, “Who Manages the NSA’s Super-Secret Budget?” in NationalJournal (June 23, 2013), at: http://www.nationaljournal.com/magazine/who-manages-the-nsa-s-super-secret-budget-20130620).  The operating budget, including skilled manpower and maintenance of supercomputers, for the NSA’s new facility in Bluffdale, Utah (see Carroll, “Welcome to Utah, the NSA’s desert home for eavesdropping on America,” in The Guardian (June 14, 2013), at: http://www.guardian.co.uk/world/2013/jun/14/nsa-utah-data-facility) must be included within this larger sum.  In the era of fiscal sequestration, any expenditure of this scale deserves to be called into question if only to ensure that the Obama administration has made its case that the operations of NSA, in the collection of metadata and other communications sources, are absolutely indispensable to national security and deserve to be accorded priority status over and above expenditures on other departments like Education, Health and Human Services, etc, as supplemental budgetary allocations are doled out in Congressional compromises to prevent government shut-downs. 

For my part, I am relatively satisfied that the Obama administration can justify these investments to the satisfaction of most members of the 113^th Congress and, for that matter, as someone who has been trained at one point to serve in the capacity of an intelligence analyst (in military intelligence), I am also perfectly satisfied that metadata serves a legitimate, useful purpose in achieving the goals of the NSA to hinder the operations of foreign governments and international organizations like Al Qaeda in the U.S. and abroad.  Questions remain, however, concerning the constitutionality of these operations relative to the Fourth Amendment. 

The governing precedence regarding the limited question of unwarranted electronic surveillance against U.S. citizens is Katz v. United States (389 U.S. 347 (1967)), in which the Supreme Court held that unwarranted electronic surveillance of U.S. citizens amounted to an illegal search and seizure under the terms of the Fourth Amendment.  This case involved the use of electronic surveillance devices (i.e. “bugs”) on a public phone booth to accumulate information for the federal criminal prosecution of a U.S. citizen on U.S. soil.  The precedence does not apply to electronic surveillance against non-U.S. citizens, suspected as foreign agents in intelligence gathering – the procedures for electronic surveillance in these circumstances are clearly spelled out by FISA.  Moreover, protections of the rights of U.S. citizens are spelled out in FISA to deal with circumstances where NSA needs to engage in electronic surveillance of a U.S. citizen on U.S. soil in relation to intelligence gathering operations by a foreign government. 

None of this really relates to the unwarranted collection of metadata.  With metadata, no one is actually listening to conversations.  On the other hand, patterns can be established by metadata that can convey a larger account on the behavior of individuals, including not only involvement with foreign intelligence and international terrorist organization but also criminal activity unrelated to the national security objectives of NSA.  The establishment of patterns in international communications is precisely the point behind metadata collection by NSA.  The critically useful character of metadata in establishing probable cause for the issuance of warrants in so many other circumstances that have no tangible relationship to FISA by federal authorities, however, makes these operations problematic – that is to say, if NSA is collecting metadata, what protections exist to ensure that it does not share its raw data with other federal agencies engaged in law enforcement (e.g. FBI, DEA), enabling the latter to obtain unwarranted evidence of criminal activity without establishing probable cause in order to obtain criminal convictions?  A blogger on legal issues in cell phone communications, J.A. Engel, makes this point quite succinctly (see Engel, “NSA Collection of Phone Records May Be Unconstitutional. Violates Fourth and First Amendment,” on Stockycat Blog (June 6, 2013), at: http://www.stockycat.com/2013/06/06/nsa-collection-of-phone-records-is-unconstitutional-violates-fourth-and-first-amendment/; also, Engel, “Courts Reexamine the Application of Goldfinger-Era Electronic Tracking Cases to Law Enforcement Use of GPS Tracking Devices,” in Richmond Journal of Law and Public Interest (Forthcoming)(Nov. 13, 2010 draft), at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1708470).  Engel cites the precedence of United States v. Warshak (631 F.3d 266 (6^th Cir. 2010)) in which the Sixth Circuit Court of Appeals ruled that there is a reasonable expectation of privacy (per the standard set by Justice Harlan’s concurring opinion in Katz) in e-mail contents stored by a third party Internet Service Provider (ISP), necessitating a court finding of probable cause and issuance of a warrant for law enforcement authorities to access the contents of e-mails from an ISP.  The legal analogy here applies to metadata possessed by third-party telephone service providers.  Approaching from the standard set in Katz, if there is a subjective expectation of privacy in the third-party maintenance of metadata demonstrated by telephonic users and society accepts the reasonable nature of such claims to privacy, then the government should be compelled to seek a warrant under a finding of probable cause that a criminal act has been or will be committed in order to pursue the collection of metadata.

Not being a constitutional attorney of any kind, I can still see the threads of Engel’s argument here, but there might be some grounding to distance metadata, relative to the Fourth Amendment, from the contents of e-mail communications or even GPS-tracking data (at least if telephonic metadata does not include geo-locational information on the devices).  If the metadata simply includes phone numbers, not names or other identifying information on account holders, then patterns might emerge, but law enforcement officials would need to undertake further investigations and, perhaps, establish probable cause to the satisfaction of a court, to determine who might be associated with a particular suspect pattern.  The pathway from a determination that a pattern exists to the issuance of a criminal indictment is, thus, necessarily piecewise and must involve a series of findings of probable cause, at least where metadata collection have suggested that a domestic criminal offense unrelated to FISA might have been uncovered by the use of telephonic records. 

On the other hand, a simpler remedy might exist (and, technically speaking, already does exist) for the quandary that is evident here.  Simply stated, NSA metadata collections function exclusively for the use of NSA in enforcement of FISA.  In circumstances where there is no indication that a particular pattern might be demonstrative of the activities of a foreign government, agents of a foreign government, or agents of an international non-governmental organization to the detriment of national security, NSA should be directed to disregard such patterns.  Agencies outside of NSA do not possess a need to know metadata revealed patterns that do not explicitly implicate the terms of FISA and its amendments.  If a durable legal firewall exists between NSA and federal law enforcement agencies, selectively breached under circumstances where other agencies are required to assist NSA in its enforcement duties relative to FISA, then use of NSA metadata to pursue agendas unrelated to FISA should not be expected to occur.

       Concluding this section, I simply do not know whether NSA collection of metadata constitutes a violation of Fourth Amendment protections against illegal searches and seizures.  Some leeway seems to exist for NSA to claim that collection of telephonic metadata on U.S. phone accounts is different from direct, unwarranted electronic surveillance of U.S. citizens, prohibited under the Katz opinion.  Moreover, through its actions, NSA does not appear to contravene, in any way, the information “minimization” protections accorded to U.S. citizens under the terms of FISA and its amendments.  In these terms, NSA does not appear to have done anything wrong constitutionally in developing its program to collect and analyze metadata, although I am sure that, at some point, the federal judiciary will stick its nose in to provide its two cents on the issue. 

       Moreover, personally, not being either an agent of a foreign government or a subscriber to the ideologies of any international non-governmental organization committed to waging acts of terror against the U.S., I tend to dismiss the idea that I have much to worry about in using my cell phone to let my boss know that I missed the bus and am, therefore, going to be a half hour late for work – I feel confident that NSA analysts are not going to find anything that they would ever conclude as suspicious from me!  The potential benefits from letting NSA collect and analyze metadata that could reveal valid patterns of communication from suspicious sources would seem, at least from existing evidence, to outweigh a minor breach of personal privacy.