NSA Part 2

By total awesome coincidence the same day I published my first piece on the NSA happened to be the same day that the NSA's bulk collection of phone metadata was deemed (for the first time in history) "most likely unconstitutional." Judge Richard Leon of the Federal District Court of the District of Columbia wrote a scathing 68 page case on why collecting millions of phone records goes against the vision of our Founding Fathers. Based on articles that I've already read, and not based on reading the entire case, here are some key points that I think standout:

• Judge Leon attacked the issue with a strong textual argument, meaning he relied on text in the constitution to make a strong case for American privacy. The bulk of his textual argument stems from the 4th amendment, which declares "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." 
• In my last post I mentioned how the government currently has a special court for handling the authorization of search warrant and similar requests. This court is specifically called the Foreign Intelligence Surveillance Court (FISC)
• In 15 previous cases the FISC has ruled this kind of metadata collection constitutional largely based off of legal precedent set by Smith v. Maryland (1979), in which the court ruled that there are no Fourth amendment protections for phone metadata (in this context metadata is the collection of phone records without delving into their actual contents). 
• The NYTimes summed it up pretty well: "The 1979 case, which involved collecting information about a criminal defendant’s calls, helped establish the principle that people do not have a reasonable expectation of privacy for information they have exposed to a third party, like the phone company, which knows about their calls."
• Judge Leon attacked Smith v. Maryland by pointing out tremendous technological differences between 1979 and the present day. Leon also cited the scope of the NSAs current program, which reaches far beyond any limits set in 1979. 
• Lastly, the judge defended his stance by citing "a landmark privacy case decided by the Supreme Court in 2012 that held it was unconstitutional for the police to use a GPS tracking device to monitor a suspect’s public movements without a warrant."(NYTimes)

Those are some importat facts. Here is my opinion:

• On Smith v. Maryland: the judge in this case ruled that Fourth amendment rights did not apply here because the phone companies that citizens subscribe to have records of information anyway. This issue is very important and lies in a gray area: if you subscribe to Verizon, you're legally giving your information to a company that can connect with the government. Should people who don't want their information in a public cloud not subscribe to companies that will record their calls and conversations? It's almost impossible in the 21st century to not have ties with some major communications company. We all need email, text messages, and (some) need social media to get through the day. Is the government crossing boundaries if they ask Verizon for phone records? Is it legally permissible for Verizon to give the government these records? This is where a legal cybersecurity/21st-century technological framework comes in- we absolutely need to have a body of law that deals with these novel and complex issues. 
• What I said above does not take a particular yes or no stances, but I will definitely affirm that the technological scope of the NSA's current activities significantly differs from what was in place 34 years ago during Smith v. Maryland. It is just not okay for the Obama administration to defend NSA snooping using a legal precedent set in 1979. They need legal precedents that do not originate from the Ice Age. 
• I am desperately hanging on to the notion that we need an independent commission to review warrant authorizations in the Foreign Intelligence Surveillance Court. Relying on the supposed "impartiality" of one judge does not make sense. The government cannot ask itself whether it needs a search warrant and then thereby approve or disprove of one. This process is intrinsically flawed. 
• When taking into account all of this information, here is my final stance: it is okay for the NSA to use phone and email metadata to defend our country. One prime example of metadata efficacy occurred with Somalian pirates: by using phone records, and not actual phone conversation content, the NSA was able to trace pirate phone calls to prevent another pirate attack. It is also okay for the NSA to thoroughly look through phone conversations and emails, but only of  a select few. Furthermore, an independent commission should work in tandem with FISC to evaluate search warrant authorizations. The authorization of a search warrant should not rely on the opinion of one judge. Lastly, Congress needs to produce a draft of a body of law dealing with cybersecurity. The international community is already working on doing this, but one that is only specific to America is much needed.