Surveillance Rights and Wrongs, Part 2: No Clear Answers

Surveillance Rights and Wrongs, Part 1: Begging the Questions

Civil liberties groups and privacy advocates in the United States rejoiced when U.S. Federal District Court Judge Richard Leon ruled last month that the NSA’s collection of bulk telephony metadata is likely a violation of the Fourth Amendment to the U.S. Constitution.

However, their joy was short-lived. Later in the month, in a lawsuit filed by the American Civil Liberties Union against such collection on constitutional grounds, U.S. District Court Judge William Pauley of the Southern District Court of New York ruled that it is legal.

The NSA is regulated because the executive branch must seek judicial approval from the Foreign Intelligence Surveillance Court before conducting surveillance under Section 215, then provide reports to various congressional committees twice yearly, Judge Pauley said.

“We are very disappointed with the decision, and are looking forward to appealing it,” Brett Max Kaufman, attorney with the National Security Project at the ACLU, told the E-Commerce Times. “Judges Leon and Pauley came to vastly different conclusions on every point of the case.”

The Myth of FISC’s Powers

FISC’s oversight of the NSA’s activities has been elevated to the status of a myth. The Obama administration and supporters of NSA surveillance point to the court’s oversight of the agency as protection against potential misbehavior. Judge Pauley’s ruling stated that 15 FISC judges had ruled 35 times that the metadata collection program was lawful.

However, FISC’s chief judge, Reggie Walton, has admitted that the FISC was forced to rely on the accuracy of the information it was provided, and could not investigate allegations of noncompliance by the NSA.

NSA staffers in Washington overstepped their authority thousands of times a year, The Washington Post reported — and the number of violations was increasing.

Further, Judge Andrew Napolitano has argued that the FISC itself is unconstitutional.

Note that the court’s rulings are not subject to public scrutiny. Moreover, it hears only the government’s side of a case. The court has reportedly been issuing rulings that assess broad constitutional questions and establish judicial precedents without oversight, including carving out an exception to the requirement for a warrant for searches and seizures as laid out in the Fourth Amendment.

That Pesky Fourth Amendment

The Fourth Amendment’s protections appear to be difficult to comprehend for supporters of the NSA’s surveillance programs.

Back in 2006, Michael Hayden, who was then principal deputy director of national intelligence, contended that the Fourth Amendment did not include probable cause.

Local law enforcement agencies also seem to not quite understand the Fourth Amendment.

Police in Seattle, for instance, set up a digital wireless network for law enforcement officers that could surreptitiously collect data on the Internet-ready devices of anyone within range. Public outrage forced the police department to disable the network until city lawmakers come up with an appropriate policy.

The Boston police department ran a license-plate reader program that scanned the license plates of more than 68,000 vehicles over a six-month period — some repeatedly — but there was no indication that the technology was being used to combat crime. For example, a stolen Harley-Davidson motorcycle had been tagged 59 times during that period and an email alert had been automatically sent to the police each time, but no order was given to retrieve the vehicle.

On Dec. 15 the department suspended the program indefinitely pending further review, also in the wake of public outrage.