Confronting the surveillance state

Two weeks after the World Trade Center towers fell, a small group of attorneys, activists and journalists gathered inside Judson Memorial Church in lower Manhattan to discuss what was to come. As National Guard vehicles rolled past and asbestos flakes still fell from the sky, the group discussed the civil-liberties landscape that would emerge from the national cataclysm of 9/11.

At that moment, policy initiatives such as the USA Patriot Act had not yet been publicly announced, but their substance was anticipated by many of those present. Sam Smith of the Progressive Review had the most prescient comments – comments that are worth revisiting in the wake of recent disclosures about mass government surveillance.

Smith noted that Americans would need to alter their discussion about the state of civil liberties in their country. “We need to change our verbs from “protect and save,” he said, “to ‘restore and re-build.’”  Even at that early point, it was possible to see where the nation was headed – and indeed – where it has now arrived.

The surveillance state reaches maturity

Last week’s news reports about wholesale NSA data mining of telephone information have provided the latest – and most vivid – illustration of the country’s transformation into what can only be called a surveillance state.  This is a phrase that can now be used without hyperbole, due to the expansive nature of the NSA programs that have been publicly revealed, and whose existence has been confirmed (and defended) through subsequent administration disclosures. 

The NSA’s aggregation program includes telephone metadata from millions of Americans, including (according to the FISA court order that authorized the surveillance) data from every Verizon customer in the country. Given subsequent White House statements, there is every reason to believe that even more telephone subscribers have been included.

According to President Obama (who campaigned against the Bush administration’s broad-based warrantless wiretapping program), the NSA intercept program is a “modest compromise” necessary to secure the nation. His opinion is shared by other members of the policy establishment, including a bevy of senators who have stepped forward to defend the NSA operation. Allies of the program have largely couched their arguments in terms of necessity, and few have directly engaged the question of constitutionality. Doing so honestly would mean adopting the position of New York City Mayor Michael Bloomberg, who recently said that the Constitution “will have to change” to accommodate more pervasive state surveillance.

Despite Bloomberg’s preferences, the Constitution has not changed.  The Fourth Amendment still exists, and still prohibits generalized searches and seizures.  In the wake of confirmation that the U.S. government is engaged in the daily and systematic collection of private data from millions of Americans, we have arrived at a verifiable constitutional crisis. This is not merely a crisis of the moment, but one that has been years in the making, and has been knowingly fomented (on a bipartisan basis) by much of the Washington establishment.

How we arrived here

Since the advent of electronic communications, governments have sought the capability to conduct blanket surveillance. The ability to realize and implement activity on such a scale is a relatively new phenomenon, however. Attempts at comprehensive telephonic surveillance were undertaken in many Eastern European countries during the Cold War years, but were constrained by limitations on manpower and technology. (At its peak, the East German Stasi was able to monitor 100,000 phone lines in real time, according to former AP journalist John Koehler.) Today, technological developments have simultaneously made the scale of collection more comprehensive, and have also partially automated the sorting and analysis of captured data.

Once an aspiration of de facto authoritarian regimes, mass surveillance techniques have been spreading to democratic nations, often under the rubric of counterterrorism.  At present, Nigeria is undergoing an e-mail surveillance controversy in which the national government has reportedly contracted with an outside security firm to scour all of its electronic communications.

Interconnected trends

In the United States, mass surveillance has arisen from a confluence of two separate, but interconnected trends. The first has been the development of post-9/11 counterterrorism policies that have expanded the reach of government surveillance. The second has arisen from the widespread adoption of commercial technology platforms (mobile phones and social media) that have created a repository of data on virtually all Americans. With commercial entities undertaking the collection, the government has been able to insert itself into their data streams through its enhanced counterterrorism powers.

The NSA’s collection of telephone metadata is a prime example of how this enterprise has likely functioned. First, Verizon collected and maintained a trove of user data.  Then, the government used a provision of the Patriot Act to obtain an order from a secret intelligence court to compel Verizon to produce the data. It should be noted here that the production of limited pieces of telephonic data is an otherwise unremarkable part of traditional criminal or intelligence investigations. What differs in this case is the scale of the production, and the legal assumptions that likely support it. 

The FISA order appears to rely upon a broad interpretation of what “tangible things” could be obtained under Section 215 of the Patriot Act. One must also imagine that the government has relied upon on an aggressive interpretation of its search-and-seizure powers to justify its blanket records request as “reasonable.” It is worth recalling that the American revolution was fought, in part, to combat the use of “general warrants” that did not specifically tie governmental searches and seizures to particular items or individuals. Here — in seizing the incidental communications records of millions of Americans — we find ourselves facing effectively the same concern.

The precipitous, next step

The precipitous, next step beyond the construction of any broad-based monitoring system would be its use to suppress political dissent. The dangers posed by the existence of state surveillance operations should be readily apparent, for those dangers are grounded in ever-present human fallibility. 

In virtually any social context, partisans have sought ever more effective ways to stifle and confound their political opponents. American history has offered us ample evidence of this tendency. Testimony taken during intelligence hearings in the 1970s revealed that the NSA had been used to wiretap the phone conversations of antiwar activists. More recently, the Bush administration issued FBI intelligence bulletins that classified left-leaning protest groups as possible terrorists. Similarly, the Obama administration has disseminated intelligence bulletins that have conflated certain mainstream conservative philosophies (such as opposition to the growth of the federal government) with terrorist extremism.

What has yet to occur is for an American administration to advance to the next, fateful stage, and combine pervasive surveillance powers with violent coercion in order to maintain political control. Whatever the conditions of the present might be, we should note that free societies are fragile, and the aggregation of blanket surveillance authority is a sure sign of their weakening. Forty years ago — during the NSA’s comparatively fledgling days — Sen. Frank Church warned of this danger, and noted that the NSA’s surveillance powers could someday be turned against the American people “to impose total tyranny, and there would be no way to fight back.”  

In order to prevent such a future from coming to pass, it is critical that Americans work now to constrain the expansion of the nation’s surveillance apparatus. Unraveling its excesses will not be simple, but it is a project that is critical to the future of American freedom. Undertaking this project will require work on three separate fronts:

Congressional investigation, political consequences

At present, the most consequential activity lies in the political realm.  The Guardian’s NSA disclosures have placed the present administration in a significantly defensive position. President Obama has been forced to publicly defend the propriety of the NSA’s activities, and his administration has scrambled to declassify supporting information to try to mitigate and explain the details of current surveillance operations. At this time, the public must demand disclosure of the legal underpinnings of existing programs, speak clearly about its opposition to unconstitutional activities, and demand political accountability for constitutional violations that have occurred.

As has been widely noted in the press, Sen. Mark Udahl had tried to bring attention to this matter for several years, but was constrained by classification imperatives. In the wake of the NSA leaks, the political moment has arrived for a full examination of the warnings provided by Udahl and others.

The most promising possibility for a full airing of the relevant issues has been proposed by the Electronic Frontier Foundation, which has called for the convening a new Church-style commission, tasked with the investigation of mass data collection and other intelligence activities that touch the lives of American citizens. Like the Pike and Church committees of the 1970s, an independent committee needs to be formed for the purpose of investigating intelligence community practices and abuses. The formation of such a body will be fraught with political difficulties, since the creation of our present situation has been a bipartisan enterprise. Only sustained, public pressure will make it come to pass. 

It is also imperative that once the results of such a commission are released, the appropriate political consequences be assigned.  If those consequences result in political fallout for the present administration, rank and file Democrats must accept it for the good of the country. It is equally important that Republicans demand that their party not use this moment as a pure political opportunity, and then simply continue the same activities when they next control the White House. Real reforms must flow from any political process, just as they did during the 1970s.

Regulate the panopticon

Philosopher Jeremy Bentham’s most notable contribution to the English vocabulary was his concept of the “panopticon” – a prison structure in which inmates could be watched at all times without their knowledge. Our contemporary panopticon of mass data collection relies on turning the traditional model of government investigative authority on its head. Under the Fourth Amendment, specific facts must be marshaled to make an argument for the search or seizure of particular items. Under the new model of mass “network” surveillance, the broad-based seizure of items (such as phone metadata) apparently occurs first, with a showing of particular facts coming at a later time to justify further searches. Changes to federal law must be made in order to bring this kind of Constitution-bending surveillance to a halt.

Network surveillance relies on the continued expansion of collection inputs — or “nodes” — to provide data streams. It also requires the existence of a legal architecture that allows captured data to be accessed by the government, and then processed through massive pattern analysis. To reign in indiscriminate network surveillance, Congress must take action on both of these fronts.

Regarding collection nodes, Congress could, for instance, halt the widespread adoption of surveillance-equipped drones, whose real-time data streams could become part of mass surveillance networks. The FAA is on track to issue guidelines for domestic drone use by 2015, and Congress must ensure that privacy is the cornerstone principle of any regulations that emerge. 

In addition, Congress should repeal or revise parts of Patriot Act and the FISA to ensure that they cannot be used to justify massive and indiscriminate data access and surveillance. It is notable that even the Patriot Act’s House sponsor – Rep. Jim Sensenbrenner – has stated that the government’s reading of Section 215 is overbroad, and goes far beyond what was intended. 

Courts must confront network surveillance

A legal defense of the NSA’s metadata aggregation program would likely hang upon a couple of key premises. Principal among these arguments would be that the collection of telephone metadata does not present a Fourth Amendment problem, since such information is “third party” data that does not implicate individual privacy rights. 

The so-called “third party” doctrine dates from 1970s-era cases, including United States v. Miller. In Miller, the court held that information entrusted to a third party (such as a bank) was not covered by the Fourth Amendment, and could be turned over to the government under a minimal standard. During the digital age, the Miller decision has spawned all sorts of unintended consequences as the government has pushed at its boundaries. Today, most of our digital communications are third-party records, and the government frequently argues for access to them under a low threshold, despite the existence of social expectations of privacy that cut the other way.

In the case of the NSA program, the government has likely used the broadest possible reading of the third-party doctrine to justify its data mining operation. Consequently, the Supreme Court needs to revisit this doctrine in order to recognize a privacy right in third party digital records, much as it did with telephone conversations in its ’60s-era Katz wiretapping decision.

Courts must also take up the issues posed by network surveillance, and unpack the relevant constitutional challenges. The Supreme Court started to venture down this path in United States v. Jones, a 2012 case which held that attaching a GPS tracking device to an automobile was a search under the Fourth Amendment. While not part of the court’s holding, five justices further indicated that the pervasive, ongoing surveillance offered by the device raised a variety of constitutional problems. Because of this, Jones was widely read as a tacit embrace of a “mosaic theory” of the Fourth Amendment, in which a collective pattern of government activity could constitute an unreasonable search or seizure. Widespread metadata surveillance would certainly fit within the scope of that theory, and the recently filed Judicial Watch lawsuit may become the vehicle for a decision on the matter.

Securing the American experiment

Over the weekend, a man saying he was the source of the NSA leaks, Edward Snowden,  came forward to assert responsibility. The growing list of government whistleblowers and leakers (including Snowden, William Binney and Thomas Tamm) indicates that the growth and use of America’s surveillance architecture is causing substantial distress within its own ranks. According to former NSA employee William Binney, the agency is “purposefully violating the Constitution.”

In the wake of such warnings, it is imperative that Americans speak out to ensure that the surveillance state is a temporary misstep of our national history, and not a headstone under which we will bury the American experiment itself.

Matt Ehling is a St. Paul-based writer and television producer. He is the president of Public Record Media (PRM), a media organization that seeks out and publishes government documents.

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