HERE WE GO AGAIN!
Communications Data Collection for Intelligence
Purposes and the 4th Amendment
Tuesday, June 11, 2013
by Richard E. Berg-Andersson
Over seven years ago now, during the second term of then-President George W. Bush, I wrote a Commentary with the title- in the form of a question- What Part of the Word 'No' Does the White House Not Understand?
The 'No' in question at that time was that appearing at the start of the second portion of the 4th Amendment to the Constitution of the United States- where it says that 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 because, at the time, I was writing about so-called 'Warrantless Wiretaps' in which telephone calls (calls in which at least one party to the conversation was a suspected terrorist [or someone believed to be aiding and abetting such terrorists]) were being tapped before a Warrant- to be issued by the same secret court authorized under the Federal Foreign Intelligence Surveillance Act that is at least accessory, if not at the very heart, of current similar controversy- had actually even been issued (more specifically, I was addressing the [in my opinion, altogether flawed] claims by the then-Bush Administration that- under a[n alleged] constitutional concept known as the so-called 'Unitary Executive'- "wiretaps first, warrants authorizing said wiretaps later" was perfectly acceptable [thus, not at all "unreasonable"- to here use the constitutional language found in the first portion of the 4th Amendment] and, therefore, constitutional]).
Pardon me for having a feeling- now, during the second term of current President Barack H. Obama- of "Brother, here we go again!"
This time round, it is more the first part of that same 4th Amendment (which emphatically states that [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated) that the more comes into play (although it must be most clearly understood that the second part quoted earlier in this piece flows directly from this first portion and that, because of this, the two parts of that Article of Amendment must be interpreted and applied in relation to each other and not by themselves alone!)...
yet the same question begs:
What part of the word 'No' does the White House not understand?
We now have had- revealed by a whistleblower working for a subcontractor of the American "intelligence community" (and the first word in that phrase in quotes, by the way, should- at times- be used most cautiously when it comes to at least one [that is: the more everyday] meaning of the word "intelligence"!)- the news (though much of this is not really news) that the National Security Agency has long been fed metadata provided by Internet Service Providers, telephone companies (and, often as not, the ISPs and telcoms are one and the same) and even social media outlets, metadata that involves pretty much anybody's activities online or on the phone (cell or landline) here in the good ol' United States of America.
Now, unlike the warrantless wiretaps I wrote about- for this website- back in January of 'aught-six, it isn't as if those working in, or for, the NSA are actually listening to phone calls or reading the contents of texts, e-mails or status updates on Facebook (Lord knows they're not wading through those tens of thousands of postings of the same captioned picture involving a cat- whether cute or grumpy!) but they (or, rather, their computer-driven technologies) are culling data that allows them to create lists and/or diagrams of interconnections between persons based on their respective activities involving their respective communications devices, thereby seeking out patterns of contacts that might well allow them to more easily identify potential terrorist cells in this country.
The problem here, however, is with that very phrase "more easily"!
The argument in favor of their doing all this (besides, and beyond, the mere citing of the PATRIOT Act and other related statutes, rules and regulations as legal justification for this activity on the part of the NSA and other intelligence officials and agents- on the Federal, State and local levels) is that, only when the unseen "seeing eyes" of those gathering all this data happen to light upon a known "person of interest" will any such data then be utilized to go after said person (as well as, it has to be admitted, potentially anyone- no matter how innocent of terrorist activities themselves- who might have had significant phone and/or cyberspace communication with said "person of interest")...
"Nothing to worry about here! Just stay in your homes and be off the streets by nightfall!" ;-)
But the essential ingredient of a reasonable search under (thus- by very definition- one that does not at all violate!) the aforementioned 4th Amendment is a little something *I* like to call SPECIFICITY which itself seems to be sorely lacking in much of this!
Simply put: if you are likely to come across a "known quantity" within the shadowy world of Terrorism within all this metadata, shouldn't you then be seeking a warrant specifically targeting said "known quantity" instead of engaging in what is, essentially, a cyber-"fishing expedition"? Seems to me that such a specifically targeted warrant is precisely what the very language of the 4th Amendment in its entirety actually requires (even where said warrant would be sought before a secret judicial tribunal operating within FISA guidelines)!
But, instead, we here have a veritable "Mother of All Warrantless Searches" through just such a FISA-authorized court- acting behind closed doors along the lines of an early 21st Century version of the late Medieval into early Modern 'Star Chamber' (itself the kind of direct affront to that Common Law inherited by Americans from the English legal system which fueled the eventual enshrinement of the 4th Amendment within the USofA's own Federal Constitution!)- simply telling the NSA (as well as others within the intelligence community) "Here's a warrant allowing you to cull data until you happen to find something useful to yourselves, after which you can use this general, non-specific, warrant issued aforehand to cover that which you had not yet done at the time it was issued"!
This is actually worse than 'Warrantless Wiretaps'- where a specific warrant for a wiretap against specific persons is granted after the wire has already been tapped (although here, although this does not make it all constitutional, at least a warrant with specificity is actually sought). Yet this is still the proverbial "distinction as makes no difference" for- in both approaches- one searches (and, in many cases, finds) before being told it is actually legal to so search (and, perhaps, find)!
In truth, Our Constitutions (plural because I here include provisions against unreasonable search and seizure as are found in the Constitutions of the several States of the American Union) were not at all set up so as to make the apprehension of 'bad guys'- of whatever type: international terrorist or bus terminal pickpocket- more easy!
Despite the many "hiccups" when it comes to proper and/or constitutional behavior on the part of Law Enforcement in the long history of that very profession here in the United States, the fact remains that- admittedly arguably- the USofA has generally been blessed with the best law enforcement personnel on Earth: but the principal reason that one, such as myself, can even argue such a case is because American Constitutions (again, plural!) force our own law enforcement personnel to the more "break a sweat" in order to aid, abet and advance criminal apprehension and prosecution. By contrast: in those places where Human Rights are far more honored in their breach, it is all too easy for police and prosecutor alike to potentially accomplish their respective jobs because, sad to say, it is in just such places where prosecution is- at worst- much too easily converted (whether for political or other purposes) into persecution and- even at best- tempts law enforcement into becoming lazy- or at least complacent- with no inherent interest in at all making sure that the innocent are not so quickly grouped together with the truly guilty.
Say what you will- and frustrating as American constitutional norms (where not also niceties) must be, if only at times, to many a peace officer out there in the street and/or on the beat- it is just such constitutional norms and niceties that make police and other law enforcement agents here in the United States the professional caste they, for the much greater part, actually are...
it should be no less as regards those within at least the data collection portion/investigatory elements of the intelligence community as well!
To what I have written so far, many- in their disagreement with same- may well note that the activities of which I herein complain have gone on for a rather long time now (well back into the years, if not the days, following the 9/11 itself) and, thus, are already very much a most necessary part and parcel of intelligence gathering under that catch-all sobriquet of 'the War on Terror'...
Such an argument, I dare say, suggests that this has been going on well before this past April 15th-- yet the Boston Marathon Bombing took place that very day anyway...
so, tell me now-- exactly how did that work out?!
In the end, we Americans will now have to sort all this out in the course of what is now (perhaps, often rancorous) political debate over that which, until very recently, we were not all that much aware of and, while so doing, we will have to- yet once more- well confront how best to balance security against terrorist attack with civil rights and liberties such as those which are- at least supposed to be (and by those very Governments that do so in our own name- as United States citizens, but also as citizens of the respective States [or equivalent, re: Territories and Commonwealths] in which we happen to reside)- protected through the Federal Constitution's 4th Amendment (as well as its similitudes on the State level)...
I'm not saying this is at all easy- either for law enforcement personnel or ordinary, everyday "persons in the street"- but it is, simply, what must be done!
Those who framed and adopted that which we Americans call our 'Bill of Rights' more than two centuries ago now can only be most properly honored if we today, indeed, do no less.