The U.S. Constitution, specifically its Fourth Amendment, details what U.S. citizens can expect in the way of privacy from the federal government:
“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.”
(I heartily recommend the Wikipedia article on the subject. It’s fascinating.)
Written in the late 1700s, its authors clearly had no inkling of cell phones, electronic documents or the Internet. Over time, courts have established precedents about how the amendment relates to privacy. For example, the “two prong” test for a violation of the amendment requires that an individual have the expectation of privacy, and also that society considers that expectation to be reasonable.
Now we have Edward Snowden’s revelation that the National Security Agency (NSA) has ordered Verizon Wireless to provide, “on an ongoing daily basis…all call detail records created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.” And also, that “no person shall disclose…that the FBI or NSA has sought or obtained tangible things under this order.” So it’s a secret search.
The Fourth Amendment says you must have a warrant to conduct a search and, sure enough, the NSA has one, issued by the Foreign Intelligence Surveillance Court (FISC). The court was created in 1978 to oversee requests for warrants against suspected foreign agents inside the United States, so it’s not quite clear why the order is so broad.
In the interest of transparency, you can read the entire FISC order here. And as a responsible citizen, you should read it. Snowden’s information is considered to be on par with the 1971 release of the so-called Pentagon Papers by Daniel Ellesberg, which revealed the U.S. Government’s systematic habit of misinformation (lying) about the Vietnamese War. The Guardian is doing an excellent job of covering the facts (non-U.S. news sources are part of a healthy information diet).
But hey, it’s only “call detail records,” not actual conversations that are being turned over to the NSA. Sadly, it’s a well-known fact in the intelligence world that if you know whom someone calls, how often and for how long (so-called “metadata” or data about data), you can build up a pretty detailed picture of what they’re up to. There’s even a U.S. Patent (8,391,836—granted to Sprint) titled “Call detail record analysis to isolate and utilize subscriber data,” a commercial application of analyzing call details to generate subscriber demographics.
In addition to the Verizon order, documents from Snowden revealed the existence of PRISM, a government surveillance program that looks at Internet-based data, like email, chat and photos.
So the government is spying on you. So what? You haven’t done anything wrong, so why worry about it? Actually, it’s been estimated that, on average, you (probably unwittingly) commit three felonies per day. This is because a lot of federal regulations have a very broad scope. In a world where computing power and digital information make it cheap to locate people who are innocently violating regulations that they’ve never heard of, you probably should be worried. A longer exposition of this topic can be found in the book Three Felonies a Day: How the Feds Target the Innocent by Harvey Silverglate, who’s a Boston civil rights lawyer, not some tinfoil-hat-wearing crazy.
Ah, but this data is making us safe from terrorists, so it’s OK, right? It may well be. But when the government keeps something secret because it might (as it has) outrage the citizenry, it’s probably time for a little more transparency. By the way, without Snowden, the court order to Verizon would have been declassified in April 2038—25 years from now.
Even the U.S. Post Office has gotten into the metadata act. As part of the Mail Isolation and Tracking Program, the Postal Service digitally photographs the exterior of every piece of paper mail it processes (more than 150 billion pieces last year). It’s been successfully used to trace letters containing ricin sent to President Obama by an actress in Texas. But at the same time, it records data indiscriminately about millions of people and stores it for later use. While a warrant is required if a law enforcement agent wants to open your mail, there’s no such requirement for accessing a picture of your mail. According to news reports, they just fill out a form.
What can you do about government spying? Since you have no control over the metadata associated with your mail, cell phone calls or email, very little. Strong encryption can protect the message content, but it can’t hide the fact you’re sending messages or to whom they’re going.
In the old days, before computers, we didn’t have to worry as much about surveillance. If you wanted to keep tabs on someone, you had to watch them, which is pretty obvious. With a court order, you might open their mail or tap their phones, but you still had to read the mail or listen to the phone. But with the advent of computers and the digitization of information, the limits of human scalability have been erased. Computers can be trained to analyze phone calls and electronic documents for certain phrases. We can store all the information produced by a person’s activity for later use (although the thought of storing pictures of 150 billion letters and packages still amazes me).
It’s incontrovertible truth that Snowden broke the law. He released classified documents in violation of his security clearance. But there are some serious questions to be answered as well: Are these NSA programs even legal? Is keeping them classified legal (or even necessary)? As Bruce Schneier, a noted security expert, wrote in the New York Times, “Keeping things secret from the people is a very dangerous practice in a democracy, and the government is only permitted to do it under very specific circumstances.”
