Taking a Gigabyte Out of the Constitution

by David Kelley

In the Declaration of Independence, Jefferson wrote that governments derive “their just powers from the consent of the governed.” Transparency, openness and vigorous debate are not political luxuries. They are political necessities. They are also, sometimes, inconvenient, inefficient and risky. It is simpler for people in power to assume they know what’s best for everyone else. But history is littered with the sad consequences of those people’s arrogance.

Section 215 of the Patriot Act has become a product of that kind of arrogance. When key personnel from our intelligence community have to lie to Congress about what they are doing, it is clear they don’t have the consent of the governed.

The most glaring example came at a public hearing of the Senate Intelligence Committee on March 12, 2013, prior to Edward Snowden’s disclosures, when Senator Ron Wyden asked Director of National Intelligence James Clapper:

“Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”

Director Clapper responded, “No, sir.”

Senator Wyden pressed him, “It does not?”

Director Clapper responded, “Not wittingly. There are cases where they could, inadvertently perhaps, collect, but not wittingly.”

We now know Clapper was lying.

Even before Clapper’s deception, justice department attorneys repeatedly told different senators that the powers being exercised under Section 215 were no different than a grand jury subpoena. The notion that a grand jury could subpoena all the telephone and Internet records of millions of Americans is ludicrous.

In 2005, the U.S. Congress was concerned enough about the potential abuse of Section 215 of the Patriot Act to create the Privacy and Civil Liberties Oversight Board. And in eight years, the board met once, in private. It did not hold a public hearing until after Snowden’s disclosures. Neither President Bush nor President Obama ever met with them.

Thanks to Snowden, we now know that the FBI and NSA go to the Foreign Intelligence Surveillance Court to get orders for the collection of data regarding domestic phone calls and the Internet activity of Americans on Google, Facebook, Aol, Yahoo and any number of other social websites and Internet companies. The fact that we call the law that gives rise to this power the Patriot Act is an homage to Orwellian double-speak. Section 215 has come to mock some of the most fundamental principles for which genuine patriots fought.

I worked in the Soviet Union for two years. I saw what happens to free speech when people think their communications may be monitored by the government. Widespread government monitoring cripples the free expression of political dissent. People develop a filter between their thoughts and their speech. People talk about soccer scores but they become timid about criticizing public policy.

When the government monitors peoples’ associations with other people, especially those who would be political activists, they become more cautious about their associations. Metadata can be used algorithmically to identify all kinds of groups—Occupy Wall Street groups, gun owners, undocumented immigrantsnot just al Qaeda. Phone records can identify not only the numbers called and the length of the call but the location of the call. The NSA says it doesn’t do that. Former NSA employee Thomas Drake says it does.

The directors of national intelligence, the FBI and NSA, when asked repeatedly by journalists what they believe the extent of their authority is under Section 215, have answered only with a deafening silence. We now know it extends to all of the records of Verizon, Google, Facebook, Yahoo and presumably AT&T and every other phone company and Internet provider. It may well extend to Bank of America, Chase Credit Card Services and United Mileage Plus. Comprehensive analysis of this metadata can be far more invasive than rummaging through someone’s dresser drawers. With enough metadata, we can glimpse into people’s hearts and minds.

The Fourth and Fifth Amendments were intended to protect us against governmental invasions “of the sanctity of a man’s home and the privacies of life.”  The Supreme Court has repeatedly said that those amendments create a “right to privacy, no less important than any other right carefully and particularly reserved to the people.”  That right is sacrificed only when people don’t have a “reasonable expectation of privacy.”  Who sends e-mails or searches the Internet with the expectation that the government will have access to all his or her records?

Ben Franklin said people who are willing to trade freedom for security will have neither. The so-called Patriot Act is a good example of what he was talking about. It is chilling to think of how the Boundless Informant or Prism program, left unchecked, could be used in the wrong hands. We have already had one president who was willing to break into the other party’s headquarters and who kept his own enemies list. We have had an FBI director who kept dossiers on anybody he disliked and who wiretapped almost anyone he distrusted.

Government has a right to collect intelligence and to keep information secret. It does not have the right to keep the scope of its power to collect that information secret. We have a right to know what our government can collect and what it can do with it.  I have friends in Pakistan (largely as a result of U.S. State Department–sponsored exchange programs). We talk on Skype, we send e-mails back and forth and we are “friends” on Facebook. But none of that is the government’s business unless there is probable cause to believe I’m breaking the law.

My understanding is that Senator Sanders has introduced legislation to require disclosure of significant FISC interpretations of Section 215 and to guard against Section 215 orders that require disclosure of tangible things not yet in existence when the order is served. Senator Leahy has a proposal that would tweak the rules for how the government can access business or phone records under the Patriot Act. Among other changes, as I understand it, the goal is to strengthen the relevancy standard the government must meet before collecting data from communications companies. His bill would require the government to show how the records they want are relevant to an investigation and are linked to a foreign power or agent.

Those proposals would be steps in the right direction. But Congress should also insist on a comprehensive report on what is being collected, how this enormous data collection is used and what actual results it has produced. I suspect all of the resources being devoted to collecting “big data” might well be put to better use following up on genuine evidence of wrongdoing. Field agents tried to alert the FBI to the 9/11 bombers without result. Russian intelligence agencies tried to alert us to the dangers of the Boston Marathon bombers and nothing was done. We were busy collecting metadata.

So what about Edward Snowden? He walked away from a $150,000 a year job and a comfortable life in Hawaii and put his life and freedom in jeopardy in order to tell the truth about what our government was up to. As I write this, he sits in limbo in the transit hotel at Sheremetyevo Airport in Moscow. His greatest concern, he says, is that his disclosures may not make a difference. He has incurred the wrath of the entire U.S. intelligence community, pretty much ensuring that the rest of his life will be a living hell.

Meanwhile, James Clapper will go home to a nice comfortable house in the Washington suburbs. He’ll retire on a cushy government pension, and he’ll get lots of awards for his public service.

I wonder who Tom Jefferson would say the real patriot is.