JUNE 5, 2015
TWO YEARS AGO, June 6, 2013, England’s Guardian newspaper ran this startling headline: America’s National Security Agency (the NSA) was “collecting phone records of millions of Verizon customers daily,” and the byline “top secret court order requiring Verizon to hand over all call data shows scale of domestic surveillance under Obama.” This was only the start. Over the next weeks more disclosures poured forth in both the Guardian and the Washington Post. Not just Verizon’s phone records were being captured in this massive dragnet, but also the phone and email records of every American from every phone company and internet service. This so-called “meta-data” let the government know who we were talking to, when you talked, and for how long. The government was spying on us in an unprecedented way, under orders issued by secret and unreviewable courts, and had been denying all along that it was doing so.
The source of these momentous disclosures was a heretofore unknown security agency worker, Edward Snowden. The movie Citizen Four (its title being the name Snowden first used for himself with the media) detailed how Snowden communicated to journalist Glenn Greenwald and filmmaker Laura Poitras that he had major disclosures to make about a secret spying program. There followed a clandestine meeting in Hong Kong, where Snowden handed over computer files he copied from the NSA’s computers to Greenwald in a remarkable exchange Poitras documented in her Academy-award winning film.
The Los Angeles Review of Books commemorates the second anniversary of the first Guardian article with three pieces relating to the aftermath of Snowden’s disclosures. Anne Richardson reviews a collection of essays, After Snowden, assessing the Snowden legacy; Jessica Pishko reviews Robert Scheer’s They Know Everything About You, a dire warning of the juggernaut he calls the “military-intelligence complex”; and this writer interviews leading constitutional scholar Erwin Chemerinsky, about the legal challenges spawned by the discovery of America’s secret program to spy on its own citizens (see audio player above).
For civil libertarians, the NSA’s bulk data collection program was deeply troubling. The indictment against it was manifold. The FISA Courts — which authorized the data collection — existed as a shadow judiciary, beyond the scrutiny of the public and even the Supreme Court itself. It acted in secret with only one side — the government’s — present to support requests for surveillance warrants. Its decisions could not be appealed, even to the Supreme Court. Not only were its decisions unreviewable, but also its appointments. The Chief Justice chose FISA’s judges, without review by the Senate or any legislative body. In practice it has acted as a rubber stamp for the government’s requests, approving 1788 out of 1789 subpoenas in one year, as reported in The New York Times.
That the Court would authorize such sweeping data collection on nearly every single American also raised concerns. Far from “particularly describing” the object of these searches, as the Constitution’s Fourth Amendment requires, the FISA court warrants authorized gathering meta-data relating to practically every phone call and internet communication in this country. For civil rights advocates, such wide-ranging searches were tantamount to the “General Warrants” so detested by American revolutionaries — sweeping search warrants that gave His Majesty’s officers broad authority to search and seize unspecified places or persons, without a particularized description of the person or thing to be seized or the place to be searched (the Fourth Amendment was drafted to prevent this from ever taking root in the American Republic).
Snowden’s disclosures generated a host of legal challenges to the NSA’s data collection program — indeed, Snowden made such challenges possible, as prior legal attacks had failed for lack of proof that the government was in fact spying. As explained by Professor Chemerinsky in his interview for LARB, the government succeeded in throwing prior challenges out of court, because, in circular reasoning worthy of a Joseph Heller novel, the plaintiffs could not prove they were being spied on, and they couldn’t prove they were being spied on because the spying program (if it existed) was secret. After Snowden, the existence of the bulk data program could no longer be denied, and several courts reached the issue of its legality and constitutionality. Most significantly, just a few weeks ago, the prestigious Second Circuit Court of Appeals reached the conclusion that it was illegal — the law on which the bulk data collection program was based, section 215 of the so-called Patriot Act, did not by its explicit language authorize it. As explained by Professor Chemerinsky, this court’s decision means the entire spying program, from its inception in 2002, was beyond the scope of what Congress authorized.
Not just in the courts, but also in the halls of Congress, controversy has raged over the bulk data collection program. This reached a peak in the days approaching June 1, when, by its terms, the law authorizing the bulk-data collection program expired. Libertarian-leaning Republican Senator Rand Paul, in a Mr.-Smith-Goes-to-Washington moment, filibustered to prevent its renewal, and the law briefly expired. Then Senate forces rallied to pass a renewal of the program, but with sharp limitations. No longer can the government capture and retain all our phone and email records under the wide-ranging FISA warrants. Six months hence, the phone companies will retain the records, reachable only by warrants the government must first seek from the FISA courts, whose decisions will, at least in part, be made public. Privacy advocates will for the first time be allowed to participate in certain warrant requests. Hailed by President Obama, he signed this compromise legislation the minute it hit his desk. Senator Paul voted against it, complaining it didn’t go far enough to protect liberties.
Patriot or traitor, Snowden’s legacy is immense. Without him breaking the law and handing over his hard drives to Greenwald two years ago, we would never have known what the government was doing, and hence, never been able even to debate its legality, wisdom, or foolishness. Supreme Court Justice Louis Brandeis opined that “sunlight is said to be the best of disinfectants,” and Snowden has cast a light on among the darkest, most secretive of our government’s operations. Those in Congress and the intelligence community who defended the NSA’s spying program call to mind another Brandeis quote: “Experience teaches us to be most on our guard to protect liberty when the government’s purposes are beneficent.” While the Congressional debate over the bulk data collection program is, for the moment, settled, the controversy is not over. It will continue and define the limits of liberty in this century as we face up to the unprecedented intrusions on privacy the digital age makes possible. As we confront these issues, it might be well to recall again the words of Benjamin Franklin, penned in an age when the rights of American Patriots were also under challenge: ”Those who sacrifice liberty for security deserve neither.”
Thanks to my friend and collaborator Stephen Rohde, who contributed to the above opinion piece.