By now you all know what happened
to James Rosen. Here’s
a decent summary if you haven’t heard.
But the short version is this. A
long time ago, Rosen reported on a story based on a leak of information. Now, to leak classified information to a
reporter is a crime. But it is not a
crime to receive such leaks. Or until
now, anyway. In an affidavit,
the Obama administration decided that Rosen was likely a co-conspirator or
aider and abettor based on little more than the fact Rosen received a leak. They
even declared him a flight risk. So they
got access to his emails, phone records, tracked his movements in and out of
the State Department and even checked his parents’ phone records. And they did similar things to two
other reporters. And the AP in an
unrelated case.
Well, thanks to Glenn Greenwald
we found out yesterday that we are all James Rosen now*:
The National
Security Agency is currently collecting the telephone records of millions of US
customers of Verizon, one of America's largest telecoms providers, under a top
secret court order issued in April.
The order, a copy of
which has been obtained by the Guardian, requires Verizon on an "ongoing,
daily basis" to give the NSA information on all telephone calls in its
systems, both within the US and between the US and other countries.
The document shows
for the first time that under the Obama administration the communication
records of millions of US citizens are being collected indiscriminately and in
bulk – regardless of whether they are suspected of any wrongdoing.
The secret Foreign
Intelligence Surveillance Court (Fisa) granted the order to the FBI on April
25, giving the government unlimited authority to obtain the data for a
specified three-month period ending on July 19.
Under the terms of
the blanket order, the numbers of both parties on a call are handed over, as is
location data, call duration, unique identifiers, and the time and duration of
all calls. The contents of the conversation itself are not covered.
...
While the order
itself does not include either the contents of messages or the personal
information of the subscriber of any particular cell number, its collection
would allow the NSA to build easily a comprehensive picture of who any
individual contacted, how and when, and possibly from where, retrospectively.
It is not known
whether Verizon is the only cell-phone provider to be targeted with such an
order, although previous reporting has suggested the NSA has collected cell
records from all major mobile networks. It is also unclear from the leaked
document whether the three-month order was a one-off, or the latest in a series
of similar orders.
Do
read the whole thing. As I said on
Twitter, I disagree with him a lot but this is an extremely well-written and
necessary report. Since he is an
American at least by birth, I can say it is a patriotic thing he has done in
this reporting.
So consider this. First, every call you have made to or from a
Verizon cell phone has been collected.
Consider the implications of that.
If you called a clergyman, they know.
If you called a psychiatrist, they know.
If you called a gay bar, they know.
If you called a phone sex line, they know. If you called your lawyer, they know.
Worse than that, they know where
you are at least when you made that call.
The Supreme Court recently stated that it
violated the Fourth Amendment to track a person by GPS. Well, they tracked all of us.
For instance, if you went to
church on a certain day and as is often the case you received a call while the
minister was giving his sermon, they know you were in that church and are
likely an adherent to that religion. I
admit I don’t lay awake at night worried that someone will find out I am a
Presbyterian who often goes to my wife’s Catholic church, but there is a
historical reason for being concerned about the government identifying what faith
a person belongs to.
The same applies if you were at a
porn store when you received the call.
Or a gay bar. Or just at a
psychiatrist’s receiving help.
Or a political meeting. I don’t worry overly much about the
government knowing about my politics (seriously, it’s not a secret), but that
doesn’t mean no one ever has a right to keep their political associations
secret. For instance, in NAACP v. Alabama (1958), under the
banner of investigating possible communist infiltration of the NAACP, the state
of Alabama asked for the NAACP to disclose its membership lists. The Supreme Court had long established the
right to freely associate as an important First Amendment protection. In other words, the ability to gather
together to advance your agenda is an important right. Where would we be if those who want to
protect Constitutional Rights couldn’t gather together as the ACLU or the NRA? Or if those who wanted to advocate for women’s
rights couldn’t form NOW? And it’s not
limited associations with a political agenda: where would we be without the
ability to form the Boy Scouts and the Girl Scouts?
And here, the Supreme Court quite
wisely recognized that even if the state of Alabama had no intent to suppress
the NAACP (right!), if the NAACP was
forced to reveal who their members were, it might lead to the intimidation of
those members and a chilling of new memberships. Or to put it plainly, the KKK might frakking
kill them, and that might scare off new people from joining because they don’t
want to be killed. So the NAACP was
allowed to refuse to turn over that information.
Except now if you receive a call
while at an NAACP meeting, the government will know you are a member. Admittedly the NAACP doesn’t have a lot to
fear in relation to revealing its membership these days, but rights do not
disappear just because the immediate danger they protect against had passed.
But while you were at the
lawyer’s office, you received a phone call from someone. So now the fact you were there is in a
government database. And if your spouse
should find out that you went to a divorce attorney, it might precipitate
serious complications in your marriage.
And if you think that the data
cannot be abused, consider this. Remember
“Joe the Plumber?” The man asked then-candidate
Obama a few questions about the tax code which led to these sound bites from
Obama:
Notice, that Joe—full name Samuel
Joseph Wurzelbacher—isn’t the issue in that clip. What Joe says doesn’t matter, except as showing
what Obama is responding to. It’s what Obama
said that matters. But that didn’t stop
the left from attempting to destroy Wurzelbacher for having the temerity to question
the Choosen One:
The director of an
Ohio human services agency has been suspended for a month without pay and faces
review by a county prosecutor for using confidential state databases to find
personal information on "Joe the Plumber." She will also face review
for using her state e-mail address to help Barack Obama's fundraising by
identifying potential contributors and offering her own $2,500 donation.
Helen E.
Jones-Kelley, head of Ohio's Department of Jobs and Family Services, authorized
the searches within days of Samuel Joseph Wurzelbacher gaining national
attention during a presidential debate in which both candidates took turns
pitching their tax plans as best for "Joe the Plumber," as
Wurzelbacher became known after a chance run in with Obama at an Ohio campaign
stop.
Ohio's Inspector
General concluded in a report that Jones-Kelley had wrongly authorized searches
of Wurzelbacher through records kept on child support payments, temporary aid
to families and unemployment benefits. A state employee concerned that privacy
rules had been violated initially disclosed the breaches.
Consider the frightening message
that sends: keep your head down. Don’t
stick your head up or it might get cut off.
You don’t believe me? Consider
this additional paragraph:
Jones-Kelley told
investigators that it was agency practice to check the backgrounds of someone
"thrust quickly into the public spotlight," but Thursday's report
from Inspector General Thomas P. Charles said there were "no policies or
procedures to support her."
(Source.)
Yeah, I am sure it had nothing to do with the politics involved, either.
Or consider equally the
possibility of leaks of private data:
John Eastman, a law
professor at Chapman University’s School of Law and the chairman of the
National Organization for Marriage, said that copies of the group’s tax returns
and donor lists were leaked to the Human Rights Campaign, a group that supports
marriage equality.
“These are
felonies,” he said, and ones that have not been prosecuted despite his group’s
requests of the Justice Department.
(Source.) And when those donor lists were leaked, this
led to... you guessed it0, intimidation.
No, not as bad as getting killed by hooded terrorists, but there is no
amount of anti-free-speech intimidation that is justifiable in my book,
especially when it is prompted by state action.
Eastman believes this is due to a
deliberate leak, but leaks can be deliberate and malicious or merely incompetent. Do you feel comfortable that the government will
do everything it can to protect this private information from hackers and other
information gatherers? They have trouble
protecting their own secrets. Why should
you think they will do better with yours, which the don’t’ care as much about?
And the worst thing about this,
is that there isn’t even the pretense of individualized suspicion, here. And that, folks, is the key to the Fourth
Amendment.
The Fourth Amendment states the
following:
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 first clause means more or
less, “no unreasonable searches and seizures.”
Meanwhile the primary purpose of the second clause is to prevent what is
called a “general warrant”—that is, an open-ended warrant lacking specificity
in time, place, the things or people to be searched or seized. In Andresen v. Maryland (1976), the
Supreme Court wrote that:
General warrants, of
course, are prohibited by the Fourth Amendment. "[T]he problem [posed by
the general warrant] is not that of intrusion per se, but of a general,
exploratory rummaging in a person's belongings. . . . [The Fourth Amendment
addresses the problem] by requiring a `particular description' of the things to
be seized." Coolidge v. New Hampshire, 403 U. S. 443, 467 (1971). This
requirement " `makes general searches . . . impossible and prevents the
seizure of one thing under a warrant describing another. As to what is to be
taken, nothing is left to the discretion of the officer executing the warrant.
Even when searches are not
performed under a warrant, these principles guide how the Fourth Amendment
applies. For instance, in Chandler
v. Miller (1997), Justice
Ginsberg wrote that:
The Fourth Amendment
requires government to respect "[t]he right of the people to be secure in their
persons . . . against unreasonable searches and seizures." This restraint
on government conduct generally bars officials from undertaking a search or
seizure absent individualized suspicion.
In Chandler, they were confronted with a requirement that all
candidates for certain Georgia state offices pass drug tests. Besides arguably having a disparate impact on
the Democratic and Libertarian parties (I
kid!), this was seen as a violation of the Fourth Amendment because it was
a search without individualized suspicion.
Which is not to say this is
always fatal. If you read Chandler you will see several
circumstances listed where it was allowed. It required two things. First it had to be a special circumstance over
and above ordinary law enforcement. I
suppose there is a good chance that the fear of terrorism justifies that (this order
did start after the Boston Marathon bombing after all) though that is not
guaranteed. And second, the intrusion
has to be minimal. Which is where I think
this thing trips up. Why do they have to
track the movements and phone calls of every person on Verizon? They can’t narrow it down? Not even a little?
The answer is of course they
can. They can come up with a list of
suspected terrorists and maybe track their associates and even the associates
of their associates. They don’t have to
track everyone.
Indeed, such tracking would appear
to violate the law they claim authorization under. Here’s the relevant statutory text:
Subject to paragraph
(3), 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 obtain foreign intelligence information not concerning a
United States person or 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.
That is one part. Here is another, discussing what has to be in
the order:
(b) Recipient and contents of application
Each application
under this section—
...
(2) shall include—
(A) a statement of
facts showing that there are reasonable grounds to believe that the tangible
things sought are relevant to an authorized investigation (other than a threat
assessment) conducted in accordance with subsection (a)(2) to obtain foreign
intelligence information not concerning a United States person or to protect
against international terrorism or clandestine intelligence activities, such
things being presumptively relevant to an authorized investigation if the
applicant shows in the statement of the facts that they pertain to—
(i) a foreign power
or an agent of a foreign power;
(ii) the activities
of a suspected agent of a foreign power who is the subject of such authorized
investigation; or
(iii) an individual
in contact with, or known to, a suspected agent of a foreign power who is the
subject of such authorized investigation...
So taking the last chunk first, you
have to have reasonable grounds to think the information relevant to an
investigation of terrorism. How could
taking everyone’s records possibly be
relevant? Do they think everyone on
Verizon is at least related to terrorism?
Well, in fact we know they think they
aren’t. Every time there is an
Islamofascist terrorist attack, the White House is quick to stress that Islam
is not the problem and that most Muslims are good people. And they are right. Not only are most Muslims not likely to be involved
in Islamofascist terrorism, but they are indeed its most common victims
globally.
So how can this administration
swear up and down that not all Muslims are involved in terrorism, and then turn
around and surveil every single Muslim who happens to use Verison? Yes, I know they are survelling everyone who uses Verizon, but “everyone”
includes “every single Muslim who uses Verizon.” So how can they justify treating every Muslim
(and every non-Muslim) like a terrorism suspect?
The short answer is, you can’t.
And further, the definition of
who can be investigated limited as follows in the first passage I quoted:
provided such
investigation of a United States person is not conducted solely upon the basis
of activities protected by the first amendment to the Constitution.
Now first, notice the use of the
word “person.” That means they were not
even contemplating a mass collection of data with this law. Let that
sink in for a moment.
And second, why are they
suspicions of every single American who uses a Verizon phone? Because they committed the crime of talking on the phone. How is that not protected by the First
Amendment?
Oh and what do you want to bet
this isn’t limited to Verizon?
Seriously, are we to think that the FBI thinks the terrorists only use
one cell phone company? And for that
matter, only cell phone companies? No
landlines? Really?
No, more than likely they have
tracked all of you. We haven’t proven
this to be the case, but it seems all but certain to be the case.
Welcome to the surveillance
state.
---------------------------------------
Sidebar: One issue I have glossed over is the international aspect
of it. Well, here’s the really, really
bad news, folks. The Supreme Court has
made it pretty clear that the Fourth Amendment stops at America’s borders. This is why I have told my fellow lawyers for
years never to send attorney-client communications overseas without at least warning
the client that there is a real chance those communications will be intercepted
willy-nilly.
The case in question is United States v. Verdugo-Urquidez (1990)
and it involved a pretty normal search and seizure situation, but outside the
United States. In that case the Mexican
house of a Mexican drug lord—meaning he lives in Mexico and is a Mexican
citizen—was searched by Mexican and American law enforcement officials working
together. Evidence was found and the Supreme
Court said it could be admitted into evidence because the Fourth Amendment didn’t
even apply.
But the language in that opinion suggests
it goes further than that. Consider this
passage:
Before analyzing the
scope of the Fourth Amendment, we think it significant to note that it operates
in a different manner than the Fifth Amendment, which is not at issue in this
case. The privilege against self-incrimination guaranteed by the Fifth
Amendment is a fundamental trial right of criminal defendants. See Malloy v.
Hogan, 378 U. S. 1 (1964). Although conduct by law enforcement officials prior
to trial may ultimately impair that right, a constitutional violation occurs
only at trial. Kastigar v. United States, 406 U. S. 441, 453 (1972). The Fourth
Amendment functions differently. It prohibits "unreasonable searches and
seizures" whether or not the evidence is sought to be used in a criminal
trial, and a violation of the Amendment is "fully accomplished" at
the time of an unreasonable governmental intrusion. United States v. Calandra,
414 U. S. 338, 354 (1974); United States v. Leon, 468 U. S. 897, 906 (1984).
For purposes of this case, therefore, if there were a constitutional violation,
it occurred solely in Mexico.
Now the upside of that is that if
Mexican police beat a confession to an American crime out of you, that
confession can’t be used against you in an American court of law (in Mexican
court, you might be screwed). The downside
is that if the Mexican police search your Mexican home and find drugs, that can
be admitted in an American courtroom.
Maybe. One thing left open by the decision is the
possibility that it might be extended by connection to the “people” of United States:
That text, by
contrast with the Fifth and Sixth Amendments, extends its reach only to
"the people." Contrary to the suggestion of amici curiae that the
Framers used this phrase "simply to avoid [an] awkward rhetorical
redundancy," Brief for American Civil Liberties Union et al. as Amici
Curiae 12, n. 4, "the people" seems to have been a term of art
employed in select parts of the Constitution. The Preamble declares that the
Constitution is ordained and established by "the people of the United
States." The Second Amendment protects "the right of the people to
keep and bear Arms," and the Ninth and Tenth Amendments provide that
certain rights and powers are retained by and reserved to "the
people." See also U. S. Const., Amdt. 1 ("Congress shall make no law.
. . abridging . . . the right of the people peaceably to assemble")
(emphasis added); Art. I, § 2, cl. 1 ("The House of Representatives shall
be composed of Members chosen every second Year by the people of the several
States") (emphasis added). While this textual exegesis is by no means
conclusive, it suggests that "the people" protected by the Fourth
Amendment, and by the First and Second Amendments, and to whom rights and
powers are reserved in the Ninth and Tenth Amendments, refers to a class of
persons who are part of a national community or who have otherwise developed
sufficient connection with this country to be considered part of that
community.
That suggests that the Supreme
Court was willing to consider an interpretation of the amendment so that the
property, etc. of citizens—and possibly even people who are not citizens but
have sufficient ties to the United States to be considered part of the community
(such as resident aliens)—outside the U.S. might be protected from illegal
searches and seizures. But if the Supreme
Court ever developed that line of reasoning, I am unaware of it.
And then there are more thorny
questions of law when we apply this to phones.
Clearly two foreign citizens communicating in a foreign land are not
covered by the Fourth Amendment. But
what about when a foreign citizens in a foreign country calls an American in
America? What if an American is making
calls in a foreign country? What if they
are calling other Americans also in countries other than America? I believe this is virgin legal territory.
The additional consideration that
civil libertarians will have to contend with is the issue of whether people
have a reasonable expectation of privacy in this case. With modern technology that is often a
crucial issue (it is not considered at all when we are taking a physical trespass
on property) and with international borders, that becomes very
questionable. Why? Because once your data leaves the U.S. there
is a significant danger of it being listened to... by everyone else in the
world. I doubt, for instance, that the
Chinese even have a Fourth Amendment, and I am certain that if it exists, it is
toothless. Numerous countries around the
globe would have reason to gather this data and would have no compunction about
violating one’s privacy. And even if no
nation would do so, individuals might.
So a court might recognize those
facts and say, “the truth is once your signal or data leaves the country, you
have no reason to expect it to remain private.
So you have no reasonable expectation of privacy and therefore no Fourth
Amendment protection for this information once you leave America.” There is no guarantee a court will read it
that way, but it is a real danger.
So my analysis above might
ultimately apply only to calls within America by “the people” as the Supreme
Court meant the term above. Or it might also
apply to the people of America, wherever they are. Or some other formulation. But we can only be sure that the analysis above
only applies to phone calls between “the people of America” while in America. Anything outside of that formulation is one questionable
ground, Fourth-Amendment-wise.
---------------------------------------
Sidebar (II): Some have said “Bush has done this, too.” Well, first, I don’t see any reporting that
definitively says he did. For instance,
in Greenwald’s article, he writes:
The NSA, as part of
a program secretly authorized by President Bush on 4 October 2001, implemented
a bulk collection program of domestic telephone, internet and email records. A
furore erupted in 2006 when USA Today reported that the NSA had "been
secretly collecting the phone call records of tens of millions of Americans,
using data provided by AT&T, Verizon and BellSouth" and was
"using the data to analyze calling patterns in an effort to detect
terrorist activity." Until now, there has been no indication that the
Obama administration implemented a similar program.
Let’s parse that out a little
bit, here. They talk about “tens of
millions of Americans.” Which means that
it is probably more than twenty million—probably at least thirty million by the
way language is normally used—but less than one hundred million. Indeed you have to think that if it was over ninety
five million, they would have said “nearly one hundred million.” But I am assuming worst case scenarios, so
let’s say somewhere between thirty and ninety nine million.
That’s bad, but you know what
that isn’t? All of us. That implies that some kind of selection is
being applied. Now anything much over
thirty million people being surveilled, or roughly ten percent of the
population of America, sounds like whatever criteria they are using is entirely
too loose. The pretense that this is
based on anything like individualized suspicion is thin... but at least it is
there.
What Obama has done is thrown out
individualized suspicion entirely. And that
is what is frightening.
And let’s pretend for the sake of
argument we find out Bush did do exactly the same thing. Then shame
on him, too.
---------------------------------------
* Yes, I know I
am not the first person to say this.
But I will note that I wrote that part of this piece last night, so I was
first. So there.
---------------------------------------
My wife and I have lost our jobs
due to the harassment of convicted terrorist Brett Kimberlin, including an
attempt to get us killed and to frame me for a crime carrying a sentence of up
to ten years. I know that claim sounds fantastic,
but if you read starting here, you will see absolute proof of these
claims using documentary and video evidence.
If you would like to help in the fight to hold Mr. Kimberlin
accountable, please hit the Blogger’s Defense Team button on the right. And thank you.
Follow me at Twitter @aaronworthing,
mostly for snark and site updates. And
you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent
History here.
And you can read a little more about my novel, here.
---------------------------------------
Disclaimer:
I have accused some people,
particularly Brett Kimberlin, of
reprehensible conduct. In some cases, the conduct is even
criminal. In all cases, the only justice I want is through the
appropriate legal process—such as the criminal justice system. I do not want to see vigilante violence
against any person or any threat of such violence. This kind of conduct is not only morally
wrong, but it is counter-productive.
In the particular case of Brett
Kimberlin, I do not want you to even contact him. Do not call him. Do not write him a letter. Do not write him an email. Do not text-message him. Do not engage in any kind of directed
communication. I say this in part because
under Maryland law, that can quickly become harassment and I don’t want that to
happen to him.
And for that matter, don’t go on
his property. Don’t sneak around and try
to photograph him. Frankly try not to
even be within his field of vision. Your
behavior could quickly cross the line into harassment in that way too (not to
mention trespass and other concerns).
And do not contact his
organizations, either. And most of all, leave his family alone.
The only exception to all that is
that if you are reporting on this, there is of course nothing wrong with
contacting him for things like his official response to any stories you might
report. And even then if he tells you to
stop contacting him, obey that request. That
this is a key element in making out a harassment claim under Maryland law—that
a person asks you to stop and you refuse.
And let me say something
else. In my heart of hearts, I don’t
believe that any person supporting me has done any of the above. But if any of you have, stop it, and if you
haven’t don’t start.
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