Surveillance and Civil Liberties

Last week I had the opportunity to attend a seminar by Shayana Kadidal titled “Surveillance and Civil Liberties.”  Kadidal is the senior managing attorney of the Guantanamo Global Justice Initiative Center for Constitutional Rights.  This is based on the notes I took during the seminar about National Security Agency (NSA) surveillance.  The telecom procedural history has been left out because I am not sure I fully understand it.

After the Watergate scandal during the Nixon era, Congress enacted the Foreign Intelligence Surveillance Act (FISA).  This allowed the government to legally acquire warrants for covert surveillance within the United States.  Since covert surveillance must be – prepare to be shocked – covert, such permissions could not be acquired through normal methods requiring disclosure as this would defeat the entire purpose.  To get such a warrant under FISA, a select panel of judges would have to approve the warrant ex parte, ideally so such surveillance could not be used all willy-nilly on everyone.  Also of relevance, certain communications were privileged and could not be recorded.  Lawyer-client conversations, for example, would require the surveillance team to stop recording and check back every minute to see if the conversation had moved past privileged material.  Sounds invasive, right?  The government can get a warrant ex parte and spy on someone without their knowledge.  Of course, if they knew they were being spied upon they may take precautions to avoid anything incriminating.  Now think of national security and terrorism.  Still feel like this is invasive?  Let us keep going, then.

NSA surveillance as we know it became a public issue when the New York Times published an article on the topic in late 2005.  Back then, if one party was out of the US and one was in the US and either party had suspected ties to terrorism, the NSA had permission to monitor the call without a warrant.  It is not entirely clear why the Bush administration sanctioned such drastic measures, but it probably means they wanted conversations outside of what would have been allowed under FISA.  Post-September 11th fears were high and with the goal of preventing another terrorist attack the government could get away with pretty much anything.  Not only did this new monitoring pose a concern for any person with foreign ties, it also created issues for lawyers.  Remember how lawyer-client conversations were off-limits?  Not anymore.  So for lawyers to ensure their conversations with their clients were not being monitored – in this case, trust issues are a good thing – they had to make sure conversations happened face-to-face.  As one can imagine, these counter-measures cost a lot in both monetary and other ways.  In 2006, the American Civil Liberties Union (ACLU) filed a lawsuit because of this NSA chilling effect.  The same year, a similar case was brought forth by a small Islamic group who had proof they were under NSA surveillance – the government accidentally gave them a top secret document which turned out to be a transcript of an international telephone conference with board members and lawyers.  When they brought it forth as evidence, the government seized the document claiming it was a state secret and that even if they were guilty of a crime, this evidence could not be used.  With the government able to have any proof dismissed as state secrets, the case fell apart.  So too did the ACLU`s attempt – the judge required proof but the government was willing to have any proof removed as evidence.  A catch-22, if you will.

In 2008 the Bush administration passed the FISA Amendment Act, which gave the government greater authority but claimed to have safeguards to protect American citizens.  One hour after the Act was signed into law the ACLU filed a lawsuit against the Act and took the issue up to the Supreme Court.  Despite valiant attempts to once more argue against all this NSA surveillance, the ACLU lost in a 5-4 vote.  The Supreme Court declared the issue would come up later in a criminal case and would be decided then.  Has this happened yet?  Of course not.  Similar surveillance programs have been running under different names with different legal authorities for decades.  Essentially, the focus keeps shifting like a shell game (three shells, one small object, mix them up and guess where it is).  If the program was turned down by a judge, the NSA would just go to Congress and have the law changed.  Now, with the Patriot Act, the government has the right to a lot more.

The most common data collected is metadata – essentially, all your communication records.  Telecom companies have been recording this for decades, and now the government has full access to who you called, when, and for how long.  All they do not have access to is the content of your conversation.  Think of it like an envelope – everything on the outside is fair game, on record, and can be accessed without a warrant.  If this is not enough, the government can seize corporate records under Section 215.  This means all your phone, internet, credit, banking, email, cloud storage, etc. records can be accessed so long as the government can convince the corporation to grant them access.  All the government needs is a subpoena.  The government does not believe the fourth amendment applies to metadata because of third-party data – and therefore your permission is not needed.  Are there any clear lines to mark out the boundaries of third-party data?  No.  There is a lot of contention about this issue with no resolution in sight.

As recent media reports have shown, there is no clear idea of who and what the government is after.  For civilians, this is more than vaguely reminiscent of Big Brother or those dreaded Communist states of the Cold War.  But more importantly, what about protected conversations like lawyers and clients or journalists and their sources?  In these relationships – perhaps more than most – trust is required.  How can there be trust when the government is monitoring every conversation?  Only when a client is under indictment is the conversation with their lawyer privileged.  Compare this back to the post-Watergate FISA.  At least then they had to have some proof of terrorist connections and reason to go after specific people.

The most common excuse for not caring is that Americans have nothing to fear.  However, polling data indicates that while the public is apathetic towards surveillance targeted at foreign nationals and potential terrorist threats, people are outraged by the idea the government would spy on them.

Can there be a more chilling message to conform than “America is not open to spying on ordinary people”?

Some more reading on the topic (from the ACLU)

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