Following our post on the NSA's document
defending its surveillance programs, let's look more closely at the Justice Department's "white paper" explaining the legal rationale
for scooping up all
of the metadata on every
phone call under Section 215 of the Patriot Act, also known as the "business records" or "tangible things" section. This document just focuses on that one program, rather than the many other programs, and within its 23 pages there are so many ridiculous things. I'm sure we'll come back to many of them in future posts. After going through it a few times, it seems abundantly clear that this was a rush job by the administration to defend this particular program, without realizing just how ridiculous many of its claims are. As Julian Sanchez has noted, the arguments made in this document appear to contradict the DOJ's actions
in dozens of ways, and basically invalidates a ton of previous arguments
concerning other surveillance programs. And, worse, it more or less opens the door for massive
surveillance on a variety of other things. Again from Sanchez, the argument in this paper could easily apply to having a local prosecutor
subpoena all city phone records looking for drug dealing. Because safety!
Let's pick out just a few of the more inane arguments, starting with that first one highlighted above. As we've seen in the past, the DOJ makes a long and incredibly misleading argument about why your phone records aren't private under Smith v. Maryland, but then it goes further to argue that even if
a court were to say that Smith v. Maryland and the third party doctrine didn't apply here, that's okay, because the searches are "reasonable" because people want to be protected from terrorists.
... there is an exceptionally strong public interest in the
prevention of terrorist attacks, and telephony metadata analysis can be an important part of
achieving that objective. This interest does not merely entail “ordinary crime-solving,” King,
133 S. Ct. at 1982 (Scalia, J., dissenting), but rather the forward-looking prevention of the loss of
life, including potentially on a catastrophic scale. Given that exceedingly important objective,
and the minimal, if any, Fourth Amendment intrusion that the program entails, the program
would be constitutional even if the Fourth Amendment’s reasonableness standard applied.
Of course, as stated over and over again, there has yet to be any evidence presented that Section 215 did anything at all to prevent terrorism. So that seems fairly weak on its face. But, even more to the point, that justification is the justification for wiping out the entire 4th amendment. There's an exceptionally strong public interest in stopping all kind of negative activity, so why not place a video cameras and a recorder in every private room in the country?
On to some other misleading points:
have held in the analogous contexts of civil discovery and criminal and administrative
investigations that “relevance” is a broad standard that permits discovery of large volumes of
data in circumstances where doing so is necessary to identify much smaller amounts of
information within that data that directly bears on the matter being investigated.
Not true. The situations they're discussing are not at all analogous. Yes, in such cases courts will often grant broad discovery and investigations into specific crimes or civil violations
, but that's not what Section 215 does at all. It has been interpreted to mean that every record on every phone call is to be collected by the NSA regardless of any actual connection or indication of a connection to terrorism. That's not the same thing. At all. That makes a complete mockery of the term "relevant." Because when everything is "relevant" why even include the term relevant in the law? Just admit that you're enabling fishing expeditions on all data.
Moreover, information concerning the use of Section 215 to collect telephony metadata
in bulk was made available to all Members of Congress, and Congress reauthorized Section 215
without change after this information was provided. It is significant to the legal analysis of the
statute that Congress was on notice of this activity and of the source of its legal authority when
the statute was reauthorized.
And this is the other shocker. To translate, this is saying "because Congress did not explicitly tell us to stop collecting all data, we take that as implicit permission to collect all data." As for that claim that this information was "made available to all Members of Congress," that too is misleading, evidence by approximately half of Congress admitting they had no clue about this at all. Also, "made available" is incredibly different from "clearly informed and explained to Congress what we were doing." Basically, they gave this info to the Intelligence Committee, who then sought to obfuscate it and play down any concerns. While others in Congress could ask to see the details (though, sometimes those requests are denied
), they're often not allowed to bring in staff who might understand the details, nor are they allowed to make copies or take notes. These members are shown documents that may not be clear and which they might not understand. That's not fully informing them. And the resulting decision not to directly block that program is laughable because many in Congress flat out lied
about these programs (or were totally misinformed). To take that as "approval" of these programs takes incredible hubris.
information responsive to the limited queries that are authorized for counterterrorism purposes is
extracted and reviewed by analysts. Although the number of unique identifiers has varied
substantially over the years, in 2012, fewer than 300 met the “reasonable, articulable suspicion”
standard and were used as seeds to query the data after meeting the standard. Because the same
seed identifier can be queried more than once over time, can generate multiple responsive
records, and can be used to obtain contact numbers up to three “hops” from the seed identifier,
the number of metadata records responsive to such queries is substantially larger than 300, but it
is still a tiny fraction of the total volume of metadata records. It would be impossible to conduct
these queries effectively without a large pool of telephony metadata to search, as there is no way
to know in advance which numbers will be responsive to the authorized queries.
That 300 queries number has been thrown about quite a bit over the last month or so, but here they're admitting that the number of records seen is "substantially larger." I would imagine so. Now that they're admitting they can look at almost everything
, since with "three hops" you can cover most everyone. A study from 2011 showed that everyone on the internet was, on average, 4.74 steps away from everyone else. So if you can look out 3 hops, you can look at an awful lot of metadata.
Going back to the question of relevance, the DOJ again claims that Congress must have known that relevance under the law means "everything."
Standing alone, “relevant” is a broad term that connotes anything “[b]earing upon,
connected with, [or] pertinent to” a specified subject matter. 13 Oxford English Dictionary 561
(2d ed. 1989). The concept of relevance, however, has developed a particularized legal meaning
in the context of the production of documents and other things in conjunction with official
investigations and legal proceedings. Congress legislated against that legal background in
enacting Section 215 and thus “presumably kn[e]w and adopt[ed] the cluster of ideas that were
attached to [the] word in the body of learning from which it was taken.”
Right. How dare Congress think the word "relevant" as used in the law might possibly mean the same thing that "relevant" means in the English language. It should have known that the federal government uses a different definition of relevant, which really has nothing to do with relevance at all.
And, now, how about the DOJ completely reinventing the law so that it applies to future records rather than past records? That's fun:
Prospective Orders. Section 215 authorizes the FISC to issue orders to produce
telephony metadata records prospectively. Nothing in the text of the statute suggests that FISC
orders may relate only to records previously created. The fact that the requested information has
not yet been created at the time of the application, and that its production is requested on an
ongoing basis, does not affect the basic character of the information as “documents,” “records,”
or other “tangible things” subject to production under the statute.
Except, as some are pointing out, when the shoe is on the other foot, the DOJ directly argues that unless it's explicitly put forth in the law, records requests do not apply to prospective orders
. Here are the DOJ's rules on FOIA requests in which it says future documents
are not covered. Or how about the DOJ's own guidelines
for electronic evidence in criminal investigations. On pages 139 and 140 of that document, you can see it specifically says that requests for information "should not be used prospectively to order providers to preserve records not yet created." But that's concerning a law -- 18 USC 2703
which also does not explicitly state it applies to prospective records. So why does the government say that it doesn't apply to prospective records in that case, but magically it does apply to them when we're talking about the Patriot Act. And, if the DOJ is relying on Congress' knowledge of how these things are currently interpreted under the law, couldn't Congress just point out that it looked at the DOJ's reading of 2703 and believed that the administration would clearly know that just because it doesn't explicitly call out prospective orders on future documents, that the government would know the law doesn't apply to future records?
Honestly, this document is a mess. It's clearly a whitewash job done to cover up the fact that this program is a massive intrusion on privacy and almost certainly both illegal and unconstitutional. Coming up with after-the-fact legal justifications for it just shows how desperate the administration is getting.