Posted by on October 04, 2013 in Blog

By Isaac Levey
Legal Fellow

On Wednesday, the Senate Committee on the Judiciary held a hearing to discuss possible reforms and oversight to the Foreign Intelligence Surveillance Act of 1978 (FISA). The hearing, which Chairman Patrick Leahy (D-Vt.) quite properly insisted on holding despite the government shutdown because of the importance of the issue, focused on the government’s use and interpretations of its authority under FISA Sections 215 and 702. These are the provisions that have been used to justify, respectively, the bulk collection of virtually all Americans’ phone records; and warrantless, almost unrestricted targeting of the communications of non-Americans abroad, but which can easily pick up the communications of Americans in its dragnet.

Like at last week’s hearing before the Senate Intelligence Committee, the Judiciary Committee heard from James Clapper, Director of National Intelligence (DNI); and Gen. Keith Alexander, Director of the National Security Agency (NSA), which conducts most of these investigations and data acquisitions. And although the non-governmental witnesses were different, the proceeding was pretty familiar to someone who had watched the Intelligence Committee hearing. To the extent there was a noticeable difference, it was that Judiciary has more civil libertarian-type members than Intelligence does, such as Chairman Leahy and Sens. Al Franken (D-Minn.), Richard Blumenthal (D-Conn.), and Mike Lee (R-Utah), so Clapper and Alexander’s claims were occasionally challenged more. Clapper also testified that roughly 70% of American intelligence officers are furloughed as a result of the shutdown; this concerning news caused the entire Committee to grandstand and try showing who was more concerned, and led to a paroxysm of blame wars over who is more responsible. In short, business as usual in Washington these days.

It seems appropriate, particularly since a lot has been said about this lately, to address some of the most common things being said on this issue, and arguments being made, by individuals on all sides. A lot of what’s out there now is bad argument, confusing, or flat-out untrue, but this post will try to bring a little clarity to this crucial, but very complicated, subject. Some of these propositions will be easier to evaluate and than others – some are fact, some are opinion, some are speculation – but this seems like the best one can do.

  • The NSA is listening to all Americans’ phone calls and reading their e-mails.

FALSE. The programs that have been disclosed do not permit acquiring “the content of communication,” which is defined as the message actually sent. What is acquired is who sent it; when; and to whom: they can look at who somebody called, but not what they said. To listen in on an American’s phone call, or read an e-mail or text message, the Government must acquire a warrant. This distinction is not new to electronic communications, or phones: obviously, the Government sees who you write letters to, because you put the address on an envelope and give that envelope to the U.S. Postal Service. But to open your mail, the Government needs a warrant. And to get the warrant, the Government needs to show probable cause that the evidence will connect you in some way to criminal wrongdoing. Furthermore, although all Americans’ records are collected, very few of them are actually used or looked at. In order to look up one U.S. person’s phone number – i.e., to see who he’s called using the system – the NSA has to already have some legitimate reason to investigate that person. This is not to say, of course, that the NSA has never – and never will – illegally listen to Americans’ phone calls. Those who see nefarious government activity around every corner may believe indiscriminate wiretapping still happens, and perhaps they’re right. But the recent leaks show no evidence of that sort.

  • Since the NSA isn’t actually listening to Americans’ phone calls, we shouldn’t be concerned.

FALSE. This argument is often made by Sen. Dianne Feinstein (D-Cal.), who sits on Judiciary and chairs the Intelligence Committee. She insists that the program is not properly called “surveillance” because no one’s calls are overheard. But without getting into that semantic debate, it’s obvious that just because the government can’t actually hear what you say over the phone, the list of the people you call/e-mail/text, when looked at as a mosaic over time, is incredibly revealing. A man’s late-night phone calls to an unknown phone number could indicate an extramarital affair; a nun’s phone records could indicate she’s recently called an abortion clinic. Another person might be revealed to occasionally call a drug dealer, a suicide hotline, or a psychologist. A full list of someone’s calls, coupled with when they make them, can easily be just as revealing as listening to what’s actually said. At the Judiciary hearing, these points were forcefully illustrated by the testimony of Edward Felten, a computer science professor at Princeton University.

  • The phone records collection program is illegal and/or unconstitutional.

PROBABLY FALSE. FISA authorizes the Foreign Intelligence Surveillance Court (FISC) to order the collection of records that are “relevant” to an antiterrorism investigation. The legal standard of relevance is very low: it essentially means any information that will help the government investigate terrorism, and all this information no doubt will be, in some sense, helpful. So far as the Constitution is concerned, under current Supreme Court precedent, particularly the decision in Smith v. Maryland (1979), Americans have no constitutional expectation of privacy in their phone records.

The testimony of Prof. Laura Donohue on Tuesday argues that this bulk collection contradicts at least the spirit, if not the letter, of FISA and the Fourth Amendment, but for better or for worse, the more persuasive argument was that of another panelist, Prof. Carrie Cordero: “the arguments that these programs … are illegal are mostly arguments about what the law should be, not what the law is.” This is not to say there are concerns over the breadth of these programs: some change is in order, and Professor Donohue’s skepticism about whether the Court’s assumptions in Smith, however relevant they might have been in 1979, still make sense in 2013, is warranted. But the fact that these programs should be changed doesn’t mean they’re illegal, and right now, they aren’t.

  • Collecting our phone records keeps us safe and could have prevented the September 11, 2001 attacks.

MAYBE? This is probably the most important question, but it’s the hardest to answer. Clapper, Alexander, and just about everyone else who has worked in intelligence seems to believe these programs make us safer, and there’s no reason to doubt they believe what they’re saying. They give the Government much more information, but whether that actually helps them stop terrorists is unknown and, perhaps, unknowable. The question relies on too many hypotheticals, what-ifs, maybes, and might-have-beens, to admit of an intelligent answer.

The problems with this question are best illustrated by the 9/11 argument, which Sen. Lindsey Graham (R-S.C.) is particularly fond of making and has been echoed by Chairwoman Feinstein, Sens. Saxby Chambliss (R-Ga.) and Jeff Sessions (R-Ala.). It is not wholly groundless or speculative: they point to a specific phone call one of the hijackers made, from inside the United States, to an foreign terrorist in the weeks leading up to 9/11. Under the law at the time, the Government had no access to that record, and this wasn’t discovered until later. But under the law now, an NSA analyst who was investigating that terrorist’s phone records could have found the call from the hijacker. Maybe the analyst would have seen that call and investigated the hijacker further. Maybe that investigation would have revealed the hijacker’s awful plans, and maybe we could have prevented that terrible day. On the other hand, maybe NSA would have missed that phone number on the terrorist’s records, or considered it to be innocuous. Maybe further investigation of the hijacker wouldn’t have revealed anything. And of course, even if the Government had found and arrested one would-be hijacker, there was no guarantee they would have stopped the entire attack, or even prevented any of the planes from hitting their targets. There were nineteen men who participated, with four or five on each of the four planes. In sum, you don’t have to dismiss the 9/11 argument out of hand in order to conclude it’s just too speculative a basis on which to actually make policy. We should be governing by repeated experiments and results, not vague notions best described as “woulda-coulda-shoulda.” When we’re considering the risks and benefits of a program like this, we have to remember how little information we have on how much it helps. Especially given the obvious emotion still attached to 9/11, arguments like this often obscure complicated issues far more than they help advanced reasoned debate.

So these are the questions people usually have, or the things they say, about these programs, and these are my assessments of whether or not they’re correct. They should be kept in mind as we move forward, so that we can come to intelligent solutions by looking at things as they are, not as political entrepreneurs claim.

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