October 2014

OUR SECURITY
VS. OUR PRIVACY
The Most Recent I² Debate was Tuesday, October 7. Replay now available here.

Click here to watch the replay, and here to comment on Bob Connery's fascinating and unsettling preview.

PREVIEW

By Bob Connery

The debate subject, "Mass Collection of U.S. Phone Records," is not theoretical; it is currently happening.

Every call of every person in the United States is being "tapped" — recorded in some fashion and turned over to the National Security Agency (NSA) by America's telecommunications companies.

Mass collection of phone records (MCPR) is conducted under secret court orders to those companies. They are under "gag" orders not to reveal the existence of the orders or their compliance. That has been going on for at least seven and perhaps 13 years.

These phone records include every call made to doctors, lawyers, political and social associates, psychiatrists and other mental health professionals, pharmacies, porn sites, whistleblower hotlines, Alcoholics Anonymous, pastors, priests and rabbis, ex-girlfriends and ex-boyfriends, other women and men, shelters for victims of domestic violence and HIV clinics, to suggest only a few sensitive categories of personal information. The government may examine that data for up to three layers of associated calls.

Context

We the People, every one of us, have Constitutional rights. Many have fought and died for them. They form the core of our national being and what distinguishes us from other nations. All branches of our governments are pledged to defend those rights. However, the task of enforcing those rights has primarily fallen on the independent courts of the nation (so-called Article III courts under the Constitution that provide due process). Citizens of the U.S. necessarily rely on those courts to curb and balance the power of the Executive Branch (recall Watergate) and the Congress (think Joe McCarthy and the House Un-American Activities Committee).

It is in this context that the debate's proposition, "Mass Collection of U.S. Phone Records Violates the Fourth Amendment," should be considered.

Questions the debate should address

a. Does the term "phone records" include data recorded over telephone lines and wirelessly from not just telephones, but cell phones, computers and other wireless devices, and does it include emails, videos and documents contained in those telecommunications?

b. Does the data base of "phone records" created by the telecommunications companies under court order and delivered to the NSA contain the contents of the telecommunications, or is that content available and accessible to the NSA, and others, based on the "metadata" (numbers of the caller and receiver, the time and duration of the call)?

c. Are the secret court orders requiring telecommunications companies illegal "general warrants," as proscribed in the language of the Fourth Amendment, because they collect phone data from every resident of the United States?

d. Are the secret court orders illegal warrants because they fail to specify "persons, places, things or effects" to be produced, but instead "search and seize" those records in an overly broad "dragnet"?

e. Does the MCRP intrude on the "reasonable expectation of privacy" of U.S. citizens established by the Supreme Court under not only the Fourth Amendment, but under the right against self-incrimination (the Fifth Amendment), the right to Free Speech (First Amendment), and the Ninth Amendment (reserving all rights not specified in the U.S. Constitution and Bill of Rights to the people)? It is worth mentioning that this same right of privacy is the basis for decisions in Roe v. Wade (1973) (a woman's right to choose abortion), and for Griswold v. Connecticut (1965), where a Connecticut statute prohibiting any person from using "any drug, medicinal article or instrument for the purpose of preventing conception" was ruled unconstitutional.

f. Was the government required to show "probable cause" "supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized," as the Fourth Amendment puts it, as a condition of obtaining the MCRP secret court order? Another secret court order allows NSA to search the MCPR data base when a "designated approving official" of the NSA determines that "there are facts giving rise to a reasonable, articulable suspicion (RAS) of association with a foreign terrorist organization." Is RAS different than probable cause?

g. Given the government's position that the great bulk of the phone records produced are not suspected of providing information relevant to ongoing foreign terrorist investigations affecting national security, is the dragnet of virtually all U.S. phone records necessary to protect national security? And is there reason to believe there is a suspicion that we are all the subject of "reasonable articulable suspicion?"

The Big Question.

The elephant in the room is whether national security interests or concerns presented by foreign terrorist threats require citizens of the United States to sacrifice their Fourth Amendment, First, Fifth, Fourteenth, Ninth and other Bill of Rights protections of privacy. There is no doubt that the threat of foreign terrorism is a real and serious concern.

The national security interest in protection of our citizens must be weighed against their rights contained in the Bill of Rights. Both need to be weighed carefully and proportionally. I believe that the weighing needs to be done outside the Executive Branch (in the secret court on the top floor of the Department of Justice), and that citizens and those who champion the rights of our citizens need to be heard in public debate on the issue. The Congress, the Supreme Court, the Executive Branch, and the people all need to be included in the discussion and resolution.

The jury is out on whether our tripartite Constitutional system of checks and balances can keep pace not just with foreign terrorism, but with the problems presented by the facile, mass, invasive powers of modern technology used to invade the right of privacy of American citizens. The flagrant intrusions on the right of privacy presented by MCPR, and the likely related uses and abuses of the data obtained, are, in my humble opinion, of a kind that a desperate executive branch might undertake in the face of a clear, comprehensive and present threat to our rights and the security of nation. At this point, the danger presented domestically by a relatively limited number of foreign terrorists present in the United States would seem to fall far short of the value of the significant, daily, continuing invasion of the right of privacy of hundreds of millions of American citizens.

Surely there are legal methods of identifying and monitoring the potential foreign terrorists in the country and taking necessary action. In any case, some risk of national security seems required, and worth the price.

In view of the Supreme Court's 1972 decision that the Fourth Amendment does not permit warrantless surveillance in intelligence investigations of domestic security threats, US. v. U.S. District Court (Keith), and the questions raised above, it is very difficult to conclude that mass collection of phone records is not a violation of the Fourth Amendment. At the very least, MCPR is a subject that richly deserves debate and attention from a somnolent American citizenry.


EDITOR'S NOTE - Bob Connery is a nationally-recognized lawyer from Denver who over the last 40 years has appeared in many trial and appellate federal and state cases throughout the United States, including several civil rights and environmental cases that have gone to the U.S. Supreme Court. He is not an "expert" on the Fourth Amendment and has no involvement in litigation on the subject.

Classmates should feel warmly welcome to comment on Bob's views concerning the October 7 debate. Just click here.

Combined, several million people follow this debate series. Again, thanks to our classmate Bob Rosenkranz for giving Yale62.org direct access. Already the debates have led to a bit of discussion on our site. Click here to locate the discussions. The October 7 replay is now available here.

Again, please follow our links to comment on Bob Connery's views about security vs. privacy and to comment on it and on our participation. The comments area is still active and open for new comments below the replay display. FYI, at least two members of the '62 Whiffenpoofs (at their mini-reunion) recently told me the debates had given them fresh interest in the website. Join them.

      Chris Cory
      Corresponding Secretary