On October 29, 2013, the Permanent Select Committee on Intelligence held public hearings regarding NSA surveillance of U.S. citizens, and potential changes to the Foreign Intelligence Services Act (FISA). Towards the end of the hearing, Chairman Mike Rogers (R.-MI.) defended domestic NSA surveillance, arguing that no one had complained about the program in ten years, which he construed as evidence of the surveillance program operating effectively. When WCL Professor Stephen Vladeck inquired as to who exactly would (could?) complain about such a secretive program, Chairman Rogers replied, “somebody whose privacy was being violated. You can’t have your privacy violated if you don’t know your privacy is violated.”[1] Professor Vladeck immediately disagreed with the Chairman, arguing that trees falling in the forest make a sound regardless of whether people are around to hear it. Chairman Rogers proceeded to ridicule this view as “a new standard in the law.”
It is troubling to me that the chairman of the committee charged with overseeing our intelligence agencies- the person responsible for ensuring that these agencies do not abuse their power- has such an extreme view about the privacy rights of American citizens. In the decade-plus since 9/11, Americans have become used to all different forms of the same question being asked: privacy or security? Can we possibly have both? And if not, is it worth giving up a little bit of privacy in exchange for security? Chairman Rogers evidently believes that it is worth giving up some privacy to ensure maximum security, and he made it clear that he believes the law supports his position.
Under section 702 of FISA, the United States government is authorized to target people “reasonably believed to be outside the United States to acquire foreign intelligence information.”[2] Section 215 of the PATRIOT Act authorizes the government to request any “tangible things” from any business that is deemed “relevant to an ongoing terrorism investigation.”[3] The government typically justifies their surveillance actions pursuant to these two statutes, even with constitutional questions surrounding these statutes. Moreover, the American people have become concerned about other government programs. A common concern is the argument that if this blanket surveillance has been kept secret for years, there is no telling what else the government believes it can do behind the veil of secrecy.
The Fourth Amendment of the United States Constitution guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…” Similar to many constitutional issues, this Amendment has been construed to mean many different things, and Fourth Amendment jurisprudence remains unresolved in many aspects. However, in Katz v. United States, the Supreme Court ruled that the Fourth Amendment protects people, not places, and enumerated a right to privacy when two conditions are satisfied: when there is a subjective expectation of privacy, and when that expectation would be deemed “reasonable” by society.[4]
Moreover, in 1979, the Supreme Court ruled in Smith v. Maryland that an individual holds no expectation of privacy in information they willingly provide to a third-party.[5] Under current surveillance practices, the government has collected metadata, such as the location and time of phone calls, from telephone service providers such as Verizon. The United States government, and presumably the FISA court, has deemed the acquisition of this metadata to be “third-party communication,” which is unprotected by the Fourth Amendment. Therefore, the only party possessing standing to challenge these data requests would be the telephone company. However, there is little incentive for these companies to challenge the law since that would be costly and put them on the government’s bad side.
Accordingly, it is at best misleading and at worst dishonest for Chairman Rogers to assert that his view of privacy rights- that they only exist if a person is aware of the violation- is the prevalent view. While privacy law in the United States is not set in stone, Supreme Court jurisprudence has clearly indicated that some form of privacy exists when society deems it reasonable, which is a slippery slope in such scenarios. While the reasonableness of the privacy vs. security question is up for debate, the idea that the government can essentially do as it pleases as long as the people are unaware is not reasonable. It is hard to conceive of society finding blanket surveillance of citizens phone information by government intelligence agencies as reasonable, regardless of whether the people have knowledge of the surveillance or not.
However, any challenge to these surveillance policies- either section 215 of the PATRIOT Act or section 702 of FISA- is likely to be unsuccessful due to the lack of standing on the part of the American people. Since the program is secretive, no individual can prove that their particular privacy rights were violated. In addition, since the third-party exception gives the people no expectation of privacy in any information shared willingly with Verizon, which includes the metadata of telephone calls, Verizon is under no legal duty to guard people’s information. Therefore, I believe the changes we need in our surveillance techniques will have to come via legislation or the increased transparency of the FISA court, which will both be tough to achieve in a Congress where the Chairman of the Intelligence committee endorses government secrecy as a valid remedy for perceived constitutional violations.
[1] Adam Serwer, GOPer: Trust Us on that Spying Thing, MSNBC (Oct. 31, 2013, 8:30 A.M.), http://www.msnbc.com/msnbc/top-house-republican-says.
[2] 50 U.S.C. § 1881(a) (1978).
[3] U.S.A. Patriot Act, Pub. L. No. 107-56, 115 Stat. 272 (2001).
[4] Katz v. United States, 375 U.S. 76 (1965).
[5] Smith v. Maryland, 442 U.S. 735 (1979).