The Harvard National Security Journal is launching a new initiative that will allow law students, legal scholars, and professionals to comment on some of the most pressing national security issues as they happen. Each month, panelists will comment on a question posed by the staff of the National Security Journal, presenting unique and informed opinions from a variety of backgrounds and experiences.
The question for February 2014:
What, if any, metadata should the government be allowed to collect? In what circumstances?
Michael Dziuban is a 2L at Harvard Law School. He has served as a Senior Editor and a Staff Editor for the Harvard National Security Journal.
Given appropriate circumstances, there should be no limits on the kinds of metadata the government should be able to collect and analyze. We live in a “wired” world in which people use multiple forms of communication every day. As a result, any limit on what forms of communication the government is allowed to monitor would be arbitrary. Moreover, such a limit would be impractical: with the knowledge that the government only collects phone and email metadata, for example, people whom the government has reason to monitor could escape surveillance by limiting themselves to other media.
But what exactly are those appropriate circumstances, under which the government should be allowed to collect metadata in the first place? I believe that FISA should continue to apply to surveillance against foreign governments and their agents and employees who are non-U.S. persons. However, when it comes to non-state actors, the legal standard for authorizing metadata collection should be higher. Such collection should only be permitted when the government has probable cause to believe that the individual whose information is sought is connected to a prior terrorist act that is the subject of investigation, or to a potential future attack that the government is trying to prevent. In other words, it is time to take terrorism by non-state actors outside of FISA, and to start subjecting it to ordinary law enforcement standards and Fourth Amendment protections.
Foreign intelligence-gathering has for most of history been a practice by which governments gain information about each other. Indeed, agencies like the NSA and CIA were created in an era in which states, or popular movements seeking to overthrow states, were the primary drivers of global politics. Terrorism has altered that arrangement significantly. Now, states don’t threaten each other so much as terrorists threaten states. But the criminal law as a tool for dealing with private actions against states and their citizenries is just as old, if not older, than the tool of foreign intelligence-gathering. The fact that non-state actors now threaten states doesn’t mean we can treat the former like the latter for intelligence-gathering purposes. Vast disparities between individual power and state power still exist. Such disparities are the bailiwick of criminal law and procedure, which should constrain intelligence-gathering—not the other way around.
How can counterterrorism be just another criminal law enforcement effort when it occurs—as it often must—outside of U.S. territory? Three answers come to mind. First, rather than be an effort at U.S. global policing, counterterrorism should be a matter of local law enforcement. The United States can still form partnerships with governments to help catch and prosecute terrorists, even if the United States isn’t the government doing the prosecuting. Second, many terrorist threats exist not just against U.S. persons abroad, but also against U.S. interests like military bases, where any terrorism crime committed would likely fall under U.S. jurisdiction. Third, and most importantly, constitutional limitations should constrain U.S. Government efforts against non-state individuals no matter where those individuals are or whether they are U.S. persons. Constitutional protections limit how our government mobilizes and uses its resources against individuals. Since all humans ought to be able to enjoy the rights the Constitution embodies, whether or not the rights attach shouldn’t depend on the identity or location of the persons the government is targeting.
Taylor Bates is a 2L from Williston, Vermont. At HLS, he is active in NSJ and serves as President of the HLS Democrats.
Journalist Michael Kinsley once wrote, “the scandal isn’t the illegal behavior – the scandal is what’s legal.” When it comes to NSA collection of metadata, proponents of the NSA position can claim legitimacy for the program—it was authorized under Section 215 of the PATRIOT Act, reported to the Intelligence Committees, apparently constitutional under the Pen Register cases, and subject to oversight by the Foreign Intelligence Surveillance Court. So why does it feel so scandalous?
Unlike many encroachments on civil liberties, the metadata program falls on every single American. True, proponents of the program will say that the database is rarely searched and only on reasonable, articulable suspicion of a terrorist connection—but the program’s secrecy undermines public trust in these assurances, and knowledge that the NSA has collected all phone records implies that government surveillance has cast at least a cursory glance over everyone.
To those familiar with the state of civil liberties in America, such a cursory glance might feel insignificant compared to the more serious violations occurring every day. The fact that this surveillance is so broad, however, makes reform of the program an important coalition-building tool for civil libertarians and an important opportunity for the Obama administration to restore trust in government.
Given that the program is relatively unobtrusive when used lawfully, greater controls on who can access the database, more notification and recordkeeping of when the database is accessed, and regular audits of the system will go far in establishing public trust. A public advocate before the Foreign Intelligence Surveillance Court and public disclosure of which metadata is being collected will be other important steps. True, more transparency could instruct terrorists in how to evade notice, but given that these programs have little evidence of stopping terrorist plots and an outsized impact on Americans’ trust in their government, a this balance seems a reasonable one.
Zoe Bedell is currently a 1L who served in the Marine Corps and then worked in investment banking before coming to law school.
Not ‘If,’ But ‘How’: A Plea for More Transparency and Effective Oversight
The fact that the government has been collecting metadata is not actually new to Americans. USA Today first reported on this program in 2006. The recent Presidential Review Group on Intelligence and Communications Technologies pointed out that the government has required phone companies to retain this data for consumer protection purposes since the 1980’s. Courts have ruled since at least the 1960s that Americans had no expectation of privacy associated with these call records. And Americans actually generally (grudgingly) approve of the programs. So while there is certainly still a valid question of whether the government should collect this data, these facts suggest that the NSA should spend a bit more time thinking about the how.
The current system isn’t working. While it might have been easier for the NSA to operate in complete secrecy essentially since its founding, that approach has now generated a sense of distrust and unease as Snowden’s stolen materials slowly trickle onto the internet. With every revelation, the American public learns of more privacy violations that undermine our faith in the system. It’s difficult understand the value of the program when we’re inundated with stories of everything from LOVEINT, to the collection of sexually-explicit webcam images, to the NSA’s infiltration of the Yahoo! and Google systems without their knowledge.
If the NSA wants to retain its data collection capabilities and the trust of the American people, it needs to get ahead of these stories, which aren’t likely to stop any time soon. Continuing to insist on total secrecy – knowing that at least some of the material is going to end up all of the news anyway – is both silly and self-defeating. A meaningful assessment of what must truly stay secret, followed by a comprehensive public report sharing what in many ways is already public, would do more than the thin statements that seem to constitute the response strategy thus far.
No internally generated report or statement will completely quiet concerns, however, which is why the NSA should also facilitate a meaningful system of external review and oversight. The President and the NSA like to point out that their programs are supervised by all three branches of the government. But these systems have not prevented repeated and expansive violations of privacy policies. Members of the judicial branch acknowledge their own limitations in effectively supervising and preventing breaches. Furthermore, Congressional oversight is limited to a few members of relevant committees, and even those committee members aren’t comfortable with the NSA’s programs.
Proposed reforms such as appointing a privacy advocate for the FISC and requiring judicial approval to access and view data would begin the process of establishing effective and credible oversight mechanisms. Privacy violations should be regularly reported and made public, along with the measures taken to fix the problems, when possible. The NSA should also allow service providers to share certain amounts of information with the public about how our call data is shared and used.
It’s nearly impossible to propose solutions from the outside without a full understanding of the program and its capabilities. But so far, the government’s piecemeal and reluctant response has done little to address Americans’ valid concerns.
Tony Carr is a 1L at Harvard Law School with an interest in the intersection of law and policy in the area of national security. He is also a veteran of the U.S. Air Force and an opinion writer on defense and veteran issues.
Until Edward Snowden’s recent disclosures, Americans had no idea records of their phone calls were being indiscriminately swept up and stored indefinitely by their own government. Upon learning of this practice, most registered unease, and not without good cause. The popular intuition — that bringing the tools of espionage to bear on ordinary citizens is dangerous and unjustifiable under all but extreme circumstances — is an important one. Notwithstanding the insistence by security officials that they need this program to keep the country safe, it is mutually exclusive with the fundamental vision of the Constitution and cannot be countenanced under any but the most extreme circumstances of imminent and specific threat. There are two good reasons for this.
The first is lenity, which holds that irreconcilable ambiguity should be resolved in favor of the defendant. This is a canonical expression of the Constitutional vision that citizens must be given the benefit of the doubt in close-call disputes with government, especially when such disputes involve the suspension of liberty. When it comes to the NSA’s metadata program, the applicable jurisprudence is contradictory. Key Supreme Court decisions from the 1970s hold that citizens have no expectation of privacy in their phone records, given that those records are knowingly shared with service providers. But this philosophy is upended by changes in technology that allow government to collect, store, and search practically unlimited amounts of data, and by an anti-terror context that gives government unprecedented latitude to prevail on service providers for investigative assistance. Given the jurisprudential ambiguity raised by these contextual changes, lenity dictates resolution in favor of ordinary citizens.
The second reason the program should be used only in emergencies involves the basic expectations of citizens. In the context of its authoring and insertion into the Bill of Rights, the Fourth Amendment stands for giving ordinary Americans stable expectations concerning when their freedom from government intrusion might be subject to compromise. Even if the Amendment is seen to allow the NSA program on the grounds that citizens have no reasonable expectation of privacy in their phone records, this would offend the overarching principle that even if not legally constrained, government must limit its intrusive actions to the bounds of discrete purpose and necessity. Collection of a specific citizen’s data predicated on a specific objective is qualitatively different than government warehousing oceans of data for un undefined or prospectively vague purposes. The latter sets too low a bar for government, leaving the associations of ordinary citizens too vulnerable to mischief, which is a common handmaiden of power. Especially power free to operate behind a veil of secrecy.