NSA Part 2: The Legal Argument

Part II:  The legal argument - A look at the 4th amendment, FISA, and The Patriot Act

The 4th amendment reads: 

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The 4^th amendment could not be any clearer:  The government cannot search your persons, houses, papers, and effects without probable cause and a search warrant granted by a court.

Since the approval of the 4th amendment, there have been two bills that expand the government's surveillance power.  The Foreign Security Intelligence Act (FISA) which was passed in 1978, and The Patriot Act was passed in 2001.  The legal authority granted in FISA and the Patriot Act comes dangerously close to violating the 4th amendment, and largely depends on the interpretation of the law.  Unfortunately, a lot of the legal language used is sufficiently vague to be interpreted in ways that were not the intention of the authors.  Both bills establish the legal framework for blanket surveillance and data mining.

FISA was introduced by Senators ted Kennedy in 1977 and was signed into law by President Carter in 1978.  FISA grants the US government the legal power to obtain physical and electronic surveillance information from "foreign powers" that are not officially endorsed by foreign governments.  FISA defines an agent of foreign power as anyone, whether a U.S. person or not, who engages in or prepares for acts of international terrorism or sabotage.  In all cases, FISA has to obtain a warrant in order to perform any kind of surveillance.  However, they answer to a special court that operates in secrecy, known as Foreign Security Intelligence Act (FISC).  The standards to obtain a wiretap are much lower in a FISA court than they are in a domestic court.

The number of requests made to FISA is public information.  For reference, in 2012 there were 1856 requests made to the FISA court.

The Patriot Act was a response to terrorist attacks on September 11th, 2011 and was signed into law in October of 2011 by President George W. Bush.  The Patriot Act grants the US government significantly more power than it previously had to perform warrant-less wiretaps on American citizens.  Most notably, sections 201, 202, and 215 expand these powers.  Lets examine each section:

Section 201:  Authority to intercept wire, oral, and electronic communications relating to terrorism

Section 202:  Authority to intercept wire, oral, and electronic communications relating to computer fraud and abuse offenses

I am not going to post the contents of sections 201 and 202, but you can read them here.

Both sections 201 and 202 are related to the interception of communications for hacking or terrorism.  In addition to granting the FBI the power to wiretap Americans for usual terrorist behaviors such as possession of chemical weapons, weapons of mass deconstruction, or killing US nationals abroad - they also grant the FBI the power to wirelessly wiretap American citizens for drug related crimes, passport fraud, mail crimes, computer espionage, extortion, and intentionally damaging a federal computer.

The usage, possession, and sale of marijuana is illegal under federal law,  and according to a Pew poll, 48% of Americans have admitted to smoking marijuana at one point in their life.  The FBI has legal authority to wiretap half of Americans for a behavior that is very commonplace.

Section 215:  Access to records and other items under FISA.

Section 215 makes amendments to sections 501-503 to FISA. The key changes regard the treatment of business records relating to international terrorism investigations. It allows the FBI to obtain any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities.

(a)(1) The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

Section 215 contains vague language that invites many questions.  Some of the questions that have been asked are:  What defines a tangible thing?  What is the legal definition of "other items"?  What is the legal definition clandestine intelligence activities?  How do you prove that something wasn't conducted solely upon the basis of the 1st amendment?  Section 215 effectively gives the government the legal authority to take anything from anyone for any reason, with approval from a secret court, and if they take something from you, you can't even tell anybody.

The ACLU has voiced their concern over areas of potential abuse that the Patriot Act would allow.  Here is an article highlighting the potential abuses that Section 215 would allow:

"The FBI could invoke Section 215 to require a library to produce records showing who had borrowed a particular book or to produce records showing who had visited a particular web site, to obtain medical records, or spy on a person because they don't like the books she reads, or because they don't like the web sites she visits. They could spy on her because she wrote a letter to the editor that criticized government policy."

And it turns out, that is exactly what the FBI has done.  Here is a copy of the FISA approved court order that the FBI used to force Verizon to hand over all phone call meta data.  It orders Verizon to produce tangible things, which include, in electronic form:

All call detail records or "telephony metadata" created by Verizon for communications (i) between the US and abroad; or (ii) wholly within the US, including local telephone calls.  This includes call routing information, session identifying information, originating phone number, destination phone number, equipment number, mobile subscriber number, trunk identifier, calling card numbers, time, and duration of the call.  Furthermore, the order says that Verizon cannot tell anyone that the FBI or NSA made this request.

In 2001, Senator Russ Feingold was one of the few vocal opponents of the Patriot Act, and he warned us these potential abuses that have now been realized.  He gave a powerful speech to congress before the vote.  Here is his conclusion:

"Under this provision, the government can apparently go on a fishing expedition and collect information on virtually anyone. All it has to allege in order to get an order for these records from the court is that the information is sought for an investigation of international terrorism or clandestine intelligence gathering. That's it. On that minimal showing in an ex parte application to a secret court, with no showing even that the information is relevant to the investigation, the government can lawfully compel a doctor or hospital to release medical records, or a library to release circulation records. This is a truly breathtaking expansion of police power."

Senator Russ Feingold is no longer in the senate. He lost his 2010 re-election bid to the Tea Party candidate, Jon Johnson.

The powers granted to the FBI by sections 201, 202, and 215 of The Patriot Act are are in clear violation of the 4th amendment and are therefore unconstitutional. The Unites States is a nation of laws, and we cannot allow our politicians who represent the people, to ignore the constitution when it is convenient to do so. The founding forefathers could never have imagined the complexities of the internet and the type of threat that terrorism provides. Our government has been forced to wage an asymmetric war against an unknown enemy. It may be required to further amend the constitution to be able to efficiently gather intelligence to combat terrorism. However, the United States of America is a democracy, and this decision must be made only after a transparent and national conversation. We cannot allow our government's intelligence programs to operate on secret interpretations of unconstitutional laws.

We need to make it very clear to the FBI and the NSA: If you want to wiretap an American citizen, get a warrant. If you don't like, too bad - the 4th amendment applies to everybody. If you think the 4th amendment needs to be further amended, then tell us why, present your facts, make your case, and we can have a national conversation.