When security actions become unconstitutional snooping

Fred Cate still has his button that reads, “Another Hysterical Librarian.”

The message invokes a remark made by former U.S. Attorney General John Ashcroft when the USA Patriot Act of 2001 was first being debated in Congress. One major concern was that the government would be able to access private individuals’ reading records from public libraries, and Ashcroft’s irreverent quip became a rallying cry.
 

Twelve years after the passage of the Patriot Act, Americans are learning the surveillance is much broader than anyone ever imagined. Classified information released by National Security Administration whistleblower Edward Snowden earlier this year revealed the federal government had expanded its program from watching suspected terrorists to spying on foreign nationals, foreign heads of state and domestic citizens.

“We’d be happy if it was just librarians,” Cate said.

The Indiana University Maurer School of Law professor and director of the IU Center for Applied Cybersecurity Research has had a front row seat to the debate between protection against terrorism and privacy rights of individuals. His service on a standing cybersecurity committee with the Department of Homeland Security and with the Defense Advanced Research Projects Agency at the Department of Defense have given him access to classified information and a deeper look into the government’s surveillance activities.

Still, he was shocked not only by what Snowden disclosed but also that Snowden, as an employee at a defense contractor, had access to such high-level information.

Even with the passage of the Patriot Act in the weeks after the Sept. 11 terrorist attacks, no one expected the government would cross the line of conducting surveillance on U.S. citizens. Cate thought the executive branch might overreach at times but only in special circumstances.

However, the so-called “Snowden flakes” have opened a pathway to challenging what the government has been doing. Cate, along with IU Maurer professor David Fidler, has now joined an effort to use this pathway to nudge the Supreme Court of the United States to start reigning in the secret surveillance program.

Cate was the lead author of an amicus curiae brief (signed by Fidler and 12 other professors from universities around the country) in support of a petition asking the nation’s highest court to take the extraordinary step of issuing a writ of mandamus and vacate a previously secret order for the collection of domestic telephone records.

If the Supreme Court acts, Cate said, it would indicate the court thinks the situation is severe enough to get involved. It would send a signal that the government is not free to do anything it wants.

‘Telephony metadata’

Among the documents Snowden unveiled was an April 2013 order by the Foreign Intelligence Surveillance Court compelling Verizon Business Network Services Inc. to turn over daily phone records of calls made from the United States to foreign countries as well as totally within the continental borders.
 

Fidler

Under terms of the federal law, the activities of FISC are secret and never brought to the public’s attention. The collection of “telephony metadata” on all of Verizon’s nearly 100 million customers who are not directly connected to any specific investigation is viewed as stepping well outside the power granted by the Patriot Act.

“It boggles the mind to understand how this is possible,” Fidler said.

The disclosure of the Verizon order gave the Electronic Privacy Information Center an avenue to bring a judicial challenge. In July, EPIC submitted a petition asking the Supreme Court to grant a writ of mandamus and vacate the order as well as prohibit such future orders.

EPIC, a public-interest research center focusing on privacy and civil liberties, argued it has the ability to challenge the order because it is a Verizon customer. Since the Foreign Intelligence Surveillance Act was drafted specifically to bar outside individuals and organizations from seeking a review of any order, EPIC asserted it can only obtain relief with a writ of mandamus from the Supreme Court.

Marc Rotenberg, executive director of EPIC, acknowledged while the court has the power to act on the petition, it traditionally has not deployed that authority. But, he said, if ever there was a writ of mandamus petition the Supreme Court should consider, this is it.

Writing the amicus brief was not a labor of love, Cate said. He wanted to push the court to act, in part, because of the work he and other professors have done for the government. As citizens and scholars, he and his colleagues were misled and had their good will taken advantage of, he said.

“The First Amendment concerns are real and substantial,” Cate wrote in the brief. “Although not including the content of communications, the call detail records and telephony metadata of millions of U.S. persons disclosed under the Verizon Order can be highly revealing in ways that may be intrinsically harmful or chill the exercise of protected liberties.”

While the chance of the Supreme Court granting the writ is uncertain, Rotenberg said Cate’s participation will draw the court’s attention as he is “one of the leading experts on surveillance law in the nation.”

Needles in haystacks

Ironically, while the federal government maintains its covert surveillance is keeping the country safe, Cate sees the actions as actually posing a danger to national security and personal privacy.

The National Security Administration is collecting such a vast amount of data, but it is not analyzing the data or, as Cate said, connecting the dots. Even though the NSA has maintained it needs to have a lot of data to find the threat, only a small part of the “black budget” that covers the national intelligence program is spent on data analysis, he said.

Using the government’s analogy of needing more hay to find needles, Cate argued that adding more hay, or data, does not improve the chances of finding a terrorist. Rather than adding more hay, he said, the government really needs a mechanism to find needles.

Fidler pointed out just a few years ago the collection of metadata from all phone calls was not plausible. Now, once again, advances in technology have outpaced the language of the law.

Each innovation sparks a more expansive reading of what is allowed by law. This is going to be a constant source of friction in American democracy in the foreseeable future, Fidler said, which will require a return to debate time and time again.

Rather than trying to put the genie back in the bottle, he said, society should build a new bottle. The country should look for smarter ways to protect itself that are not unconstitutional.

Neither Cate nor Fidler believe the surveillance activities, known to date, are threatening the very foundation of the United States. The current situation is nothing like the risk to democracy brought by the Civil War.

Yet, the revelations have diminished the country’s standing in the world, the Maurer professors said. The U.S. reputation as being a beacon of freedom has been dimmed. Now the world sees the country as a violator of democracy and liberty.

Closer to home there is anger and disappointment. Over the summer, every time the White House issued a denial, Snowden would release contradicting information. The activities of the NSA reached far beyond what Congress and the public had ever been told.

Cate said he is most disheartened that the president did nothing to stop the lying.•