The NSA Scandal

by Derek Satya Khanna
Is it “anything goes” in the War on Terror?

The NSA data-collection scandal might have been received very differently if it had not come on top of all the other Obama scandals. In the past, some Republicans have been in favor of nearly any tactic as part of the War on Terror, but now, in the midst of the Benghazi and IRS scandals, Republicans are naturally skeptical about the Obama administration. Other Republicans, and many Democrats as well, have always been worried about privacy, and these worries have been exacerbated by the DOJ’s surveillance of numerous AP reporters and of Fox News correspondent James Rosen — and most recently by the dragnet of Verizon phone records (now apparently broader than Verizon) revealed last week by the Guardian.

Many in the media are taking it personally, as prominent reporters wonder what information about their sources may have been compromised. These scandals fly in the face of the concept of protecting the Fourth Estate. Would Bob Woodward and Carl Bernstein have been able to expose Watergate in a climate like the present one? Thus when the NSA’s PRISM program for Internet data collection — something that some technology experts have suspected was going on for some time — was exposed in full PowerPoint glory, it was the political perfect storm.

To many Americans, the idea that phone records and e-mail contents were routinely given to the federal government seems to be a clear violation of the Fourth Amendment’s prohibition against search and seizure without a warrant and probable cause. But unfortunately, this perspective on the Fourth Amendment is simply not one the courts have taken for the past 50-plus years.

Thus, these scandals should result in more than just blame of the Obama administration (although it is clearly culpable). They should also prompt a thorough review of legal protections relating to searches and seizures by the federal government.

This ought to be the wake-up call that Americans have needed. For too long, too many Americans have relied upon the Supreme Court to be the sole protector of civil liberties. They are wrong. It is up to all of us to protect our civil liberties, through the officials we elect, the laws that they pass, and our role in jury trials.

The Constitution provides a framework for government, and the Bill of Rights establishes specific protections for the American people. In 1787, when the need for a Bill of Rights was being debated, Federalists argued that it was unnecessary because the federal government had been designed with minimal power over domestic affairs. There was no need, they said, to limit the federal government’s power to take your guns, because the federal government didn’t have the power to take your guns to begin with.

But to the anti-Federalists, specifying such limitations upon the federal government made sense. They believed that government will naturally abuse its power. As we know, they prevailed, and the Bill of Rights was added to the Constitution.

Note that the Fourth and Fifth Amendments and the others were not written to ensure that the federal government would be more effective. Rather, they were written to protect the people. Protection of liberty was considered sacrosanct, and reducing governmental effectiveness was a small price to pay.

And in fact, it wasn’t long after the Constitution’s ratification that the federal government began to abuse its power. In 1798, Congress passed and President Adams signed the Alien and Sedition Acts, and many critics of his administration were arrested. And John Adams has been considered to be one of our nation’s better presidents, so this proves that even good people can abuse power in pursuit of what they believe to be legitimate aims.

It’s amusing to hear people today say we should keep the PRISM program because it just might prevent a terror attack. Republican Mike Rogers, chairman of the House Intelligence Committee, even claims that PRISM did prevent the planned 2009 attack on the New York subway system (this has been heavily disputed). But whether PRISM could foil a terrorist attack is not the critical question. Many tactics would be effective, but are they permissible in a constitutional republic?

Grounding all airplanes would surely eliminate airplane hijackings. We could round up millions of people of one ethnicity or religion to help prevent terrorist attacks (and of course we did just this with the Japanese population in World War II). Republicans and Democrats are against torture, though, in the Bush administration, Republicans  sometimes played fast and loose with the definition of torture. Still, one can hypothesize a potential benefit from certified full-out torture as on the TV show 24. But just because you can hypothesize a benefit from the tactic doesn’t make it right.

Some may trust the good folks at the NSA to have this information, but would they trust the IRS with it? Would we trust the United Kingdom and other allies with that information (now that it has been reported that the information was shared?). People in the digital community know that once something exists in data form, it almost never goes away. It will exist somewhere, forever.

Further, there is the reality of today’s unprecedented administrative state. A nation where the government is able to obtain private and potentially incriminating information relating to all of its citizens is a nation that can selectively target individuals for prosecution — especially given some of the sweeping legislation on the books. Some courts have even held that violating the terms of service for a website is a violation of the Computer Fraud and Abuse Act (CFAA) — meaning that, for example, until recently every Google user under the age of 18 was a potential felon, since that site’s terms of service banned its use by minors.

Thus, because the natural inclination of government is to abuse its power, we need to update and fully flesh out traditional conceptions of privacy in a 21st-century context.

Courts have ruled that modern communication tools effectively bypass the Fourth Amendment. Under these rulings, our telephone data — whom we call and how long we are connected — are not considered to be under traditional Fourth Amendment protection (through something called the Third Party Doctrine, which holds that knowingly disclosing information to a third party — in this case, an Internet service provider — abrogates that protection). By the same reasoning, our e-mails are generally considered unprotected as well (though there is some ambiguity here in case law). It is up to Congress to fix this situation by passing new laws to protect our civil liberties. And as technology advances, it will have to periodically update these laws to force federal agencies to respect the people’s right to privacy in new situations.

Passing new laws to update privacy for the 21st century is the conservative position. It would conserve the traditional notions of privacy espoused by our Founding Fathers in the context of the modern world. Conservatism doesn’t mean that privacy is limited to 18th-century technologies because that was what was available when the Constitution was written — that’s a silly perspective.  What would there be to conserve if as society develops the new technology somehow bypasses all the protections and restrictions written in the Constitution?

PRISM may or may not violate the Fourth Amendment under current court precedents, and it is clearly an abuse of power by the Obama and Bush administrations, but those are not the operative questions. Thus the solution is not merely to chastise the president for using all the tools at his disposal to stop terrorism, but for Congress to establish new protections of civil liberties. We can start with a simple premise: If the government wants to read a letter I have written, it needs a warrant; if it wants to read my e-mail, it ought to get a warrant too.

“Liberty means responsibility,” wrote George Bernard Shaw. “That is why most men dread it.”

— Derek Satya Khanna is a Yale Law Fellow and can be reached at @DerekKhanna and He was a congressional staffer in both the House and the Senate, and is part of the coalition that launched