Saturday, June 8, 2013

The Patriot Act, Privacy & The Rule Of Law


If you followed the news this week, you would assume (perhaps rightly) that we are living in a real-life version of 1984 where the government, working in concert with enormous multi-national corporations have wide ranging access to our phone calls, Internet activity, web searches, email, and basically anything that involves modern technology. And you are not entirely wrong about this, but in the hysterical media coverage of these admittedly troubling revelations a key point was (largely) missed - IT IS ALL LEGAL.  Now, whether something should or should not be done is a moral or ethical question, but in our form of government, whether something is legal or illegal is really all that matters and here, for better or worse, the government we elected has passed (and interpreted) a bunch of laws that basically put our electronic lives on display for all* (*spooks at the National Security Agency) to see.

The "Big Brother" story really has two pieces. The first broke early in the week, a leaked order signed by the Foreign Intelligence Surveillance Act (FISA) Court directing the telecommunications company Verizon to turn over so-called "metadata" on every call made by its customers to the NSA. [1] Wow you say - ALL phone records. That seems like a sweeping invasion of privacy, Scary Lawyer Guy?! Well, it might be, but again, totally legal. In fact, no greater an expert than the ACLU provided this handy annotated explanation for how/why the directive is permissible under current law. [2] In fact, the whole reason this judicial process exists is because the Bush Administration was (allegedly) violating the law by requiring telecommunications companies to (1) turn over phone records without the issuance of a warrant and/or (2) engaged in wireless wiretapping. Conveniently, all of this (alleged) illegality was wiped clean in 2008 when Congress provided retroactive immunity to those telecommunications companies for all their misdeeds and the federal government successfully invoked the "state secrets" privilege to make a handful of potentially damaging lawsuits go away.

Curiously, none of what was reported about the production of this metadata was new. Indeed, the whole reason that judicial process resulting in the creation of the court order that leaked publicly this week exists is because of reporting done by The New York Times back in 2005 that exposed Bush Administration malfeasance. [3] That the media treated this as a "new" story was curious to say the least, but while reasonable people can differ about the morality or ethics of this type of conduct, it is legal. Indeed, while commentators throughout the political spectrum were cherry picking a line from The New York Times editorial page on Friday saying the Obama Administration had "lost all credibility on this issue .." they conveniently ignored another line from that same editorial - "We are not questioning the legality under the Patriot Act of the court order disclosed by The Guardian." [4]

While it was amusing to watch the media throw its arms in the air as if this was a new story, the more galling behavior belonged (naturally) to members of Congress who passed the law in the first place suddenly up in arms that power they gave to the executive branch was being utilized. Representative Jim Sensenbrenner, who co-authored the law that the Bush, and now Obama Administration, rely upon for these FISA orders, claimed this was not the intent of the law. [5]  Political expediency at its absolute worst.

The second thread of this story has to do with an arguably more troubling program called PRISM. Reporting done in the media indicates that the largest companies on the Internet - Google, Yahoo, Microsoft, Facebook and others have routinely provided access to their servers so information on foreign communications such as audio and video files, Internet searches, and emails can be extracted by the government. [6] Of course, the foreign part of the story got buried in an avalanche of Twitter hashtags, web memes and loose reporting, but those who took the time to read the reporting might have found the facts deeply troubling, the conduct is perfectly legal. For example, The Washington Post story on the subject notes that a law passed in 2008 provides companies that voluntarily comply with a government request of this nature immunity from prosecution. The government, on the other hand, has had its requests approved by the FISA court in a series of rulings between 2004 and 2007 and affirmed recently, most importantly, in blessing both the scope and subject matter the government sought. [7] In other words, Congress passed a law that granted the President certain powers that he has exercised with judicial oversight, which, incidentally, is precisely how our system of government works. 

Moral judgments and matters of right and wrong are not embedded in our Constitution, the rule of law is. If people don't like the government sifting through their phone records or Internet searches, do not elect Congresspeople who pass laws that allow the government to do it, do not elect Presidents who exercise that power and appoint judges who permit unfettered access to your personal information. 

END NOTES

1.  Unsurprisingly, later revelations confirmed that other major telecoms, including AT&T and Sprint were subject to the same directives. 
2. http://www.aclu.org/blog/national-security/nsa-surveillance-order-explained-aclu
3. http://www.nytimes.com/2005/12/16/politics/16program.html?pagewanted=all&_r=0. See also, http://www.nytimes.com/2007/12/17/washington/17cnd-nsa.html.
4.  http://www.nytimes.com/2013/06/07/opinion/president-obamas-dragnet.html?_r=0
5.  http://livewire.talkingpointsmemo.com/entry/author-of-patriot-act-nsa-phone-tracking-went
6. http://www.washingtonpost.com/investigations/us-intelligence-mining-data-from-nine-us-internet-companies-in-broad-secret-program/2013/06/06/3a0c0da8-cebf-11e2-8845-d970ccb04497_print.html
7.  Ibid.

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