By David K. Shipler
To risk all by being a whistleblower, you have to believe deeply in your society’s capacity for self-correction, and Edward Snowden—after periods of doubt—is a believer, it seems. Last week he hailed “the power of an informed public” in driving Congress to make modest trims in the National Security Agency’s authority to collect data on Americans’ electronic communications. This is the way an open democracy is supposed to work: expose the wrongdoing and provoke reform.
But before we celebrate with embarrassing rhapsodies, let’s remember how far the United States has to go. The 9/11 trauma has not yet healed, and the post-traumatic security measures—some sensible, others excessive—have compromised the Fourth Amendment’s guarantee of the people’s right “to be secure in their persons, houses, papers, and effects.” Many of the extreme methods of intrusion remain intact. Some have proved worse than useless, overloading intelligence professionals with terabytes of distracting information that’s hard to search and sift for the ominous patterns of incipient terrorism.
So there are both practical and ideological reasons to abandon the excesses, yet they seem likely to stay largely in place until several conditions develop.
If earlier spasms of anxiety in American history are any guide, violations of constitutional rights in the interest of national security come to an end when, a) they are so egregious that their disclosure inflames the public; b) the perceived threat diminishes; and/or c) courts find the measures illegal or unconstitutional. Early signs of each of these can be seen, but only as slight beginnings of what may become significant trends.
The aspect of the NSA’s surveillance first exposed two years ago by Snowden, a former NSA contractor, was the agency’s sweeping collection of the numbers, locations, and durations of virtually every phone call made in the United States. The initial document he released was the the top-secret renewal of an order by the Foreign Intelligence Surveillance Court that provided a stunning confirmation that the NSA had reached even farther than earlier news reports from government leakers had disclosed.
“On an ongoing daily basis,” the court commanded, NSA was to be provided with “all call detail records of ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.” Recordings of the calls were not included—those would require separate warrants from the secret court—but metadata alone permit government to map many aspects of a person’s daily life: where he goes when, with whom he communicates, and for how long. Under the court’s order revealed by Snowden, that meant the daily lives of everyone in the country, with no suspicion of wrongdoing.
It is little comfort that officials are not known to have used the massive collection against innocent Americans. You don’t have to go back very far in American history to see how unscrupulous authorities have monitored all sorts of dissidents, including labor leaders, civil rights leaders, anti-war activists, socialists, anarchists, environmental campaigners, and the like, and have mounted campaigns of dirty tricks against them. Martin Luther King, Jr., was a target of the FBI, which also tried to start a war between a street gang and the Black Panthers. The exposure of the misdeeds led to the privacy laws in the 1970s—most prominently the Foreign Intelligence Surveillance Act—that were eroded by the Patriot Act after 9/11.
Last week’s changes, contained in the USA Freedom Act, take small but welcome steps back toward the privacy protections in those earlier versions of the statutes. The new law prohibits the bulk collection of metadata by the NSA; the records remain with the telecommunications companies, accessible only with a secret warrant. And the warrant can no longer be broad enough to cover, say, a geographical area or a communication company. It must be focused on a “specific selection term . . . that specifically identifies a person, account, address, or personal device, or any other specific identifier.”
A gesture to transparency is made by permitting—not requiring—the Foreign Intelligence Surveillance Court to appoint an amicus curiae (friend of the court) to represent privacy and civil liberties interests in proceedings where significant or novel interpretations of law are at stake. Such proceedings have been one-sided, with only the government presenting arguments. Hearings will remain closed, but important decisions of the court can be declassified and publicized, at least in part.
The Foreign Intelligence Surveillance Act is not being returned to its original form, howewver. Initially restricted to intelligence gathering when it was passed in 1978, it provided that “the purpose” of its secret eavesdropping would be to gather foreign intelligence. The restriction was aimed at avoiding the law’s use in criminal investigations as an end run around the Fourth Amendment, which requires that before a search warrant can be issued, there must be probable cause that evidence of a crime will be found. Right after 9/11, the Patriot Act changed the wording, requiring that intelligence gathering be only “a significant purpose.” The amendment opened the secret warrants to use in criminal cases and thereby eroded the Fourth Amendment.
Of equal concern is the retention of a tool that Barack Obama criticized as a candidate and now allows as president: national security letters, which are administrative subpoenas that can be issued by the head of an FBI field office without a judge’s approval, for many kinds of records from bookstores, libraries, internet providers, phone companies, banks, credit card companies, and the like.
The Patriot Act made the letters easier to use. They need only be relevant to an authorized investigation, not subject to the probable cause requirement. They are now being narrowed somewhat by the USA Freedom Act, which precludes broad, sweeping demands for records by requiring that the letters identify a specific person, organization, phone number, or account. But the FBI still doesn’t have to get a judge’s approval; that recommendation didn’t make it into the law.
Furthermore, each national security letter comes with a gag order prohibiting the recipient from talking about the order, except to such people as attorneys for legal advice and technicians who need to find and provide the records. There is a caveat: The USA Freedom Act codifies a federal appeals court decision several years ago allowing a recipient to request that a court lift the gag order. And the government has the burden of proof that disclosure would threaten national security, a person’s life or safety, the progress of an investigation, or diplomatic relations. In this area, progress is measured in increments.
Yet some see a sea change in the passage of the USA Freedom Act. As Snowden wrote in The New York Times, “In a single month, the NSA’s invasive call-tracking program was declared unlawful by the courts and disowned by Congress. After a White House-appointed oversight board investigation found that this program had not stopped a single terrorist attack, even the president who once defended its propriety and criticized its disclosure has now ordered it terminated.” From his exile in Russia, Snowden has witnessed “a change in global awareness.”
Polls show a rising distaste for privacy invasions, and such companies as Apple are responding with encryption. Not everyone likes being tracked online by advertisers, much less by governments. Among people ages 18 to 34, Snowden gets a 56 percent favorable rating in the US and 78 to 86 percent in continental Europe, according to a survey sponsored last February by the American Civil Liberties Union. “The results confirmed that surveillance reform, like marriage equality, will come about because of generational change,” wrote Anthony Romero, executive director of the ACLU.
Perhaps, but not without more movement on at least a couple of the three conditions for returning to constitutional norms: a) The Snowden disclosures have begun to raise the public’s awareness of egregious violations by government, but not to the tipping point; b) The threat of terrorism feels less acute, although a major attack would revive the fears, the finger-pointing, and the calls for intensive surveillance; and c) while an appellate court has ruled bulk collection illegal, case law will not be definitive unless the Supreme Court weighs in. There is still a distance to travel.