Suddenly, the national security establishment is drowning in data. On June 5, the Guardian released what appears to be a highly classified order issued by the Foreign Intelligence Surveillance Court, known as the FISA Court, to collect Verizon customers' phone records of calls made to or by Americans. On June 6, the Washington Post revealed the existence of PRISM, which allows the collection of Internet data on a massive scale. Does this mean the end of privacy, law, and the Constitution?
Nope. There are a lot of reasons to be cautious about rushing to the conclusion that these "scandals" signal a massive, lawless new intrusion into Americans' civil liberties. Despite this apparent breadth, and even if we assume that the leaked FISA order is genuine, there are a lot of reasons to be cautious about rushing to the conclusion that it signals a massive, lawless new intrusion into Americans' civil liberties.
Let's start with the order. It seems to come from the court established to oversee intelligence gathering that touches the United States. Right off the bat, that means that this is not some warrantless or extrastatutory surveillance program. The government had to convince up to a dozen life-tenured members of the federal judiciary that the order was lawful. You may not like the legal interpretation that produced this order, but you can't say it's lawless.
In fact, it's a near certainty that the legal theory behind orders of this sort has been carefully examined by all three branches of the government and by both political parties. As the Guardian story makes clear, Sen. Ron Wyden has been agitating for years about what he calls an interpretation of national security law that seems to go beyond anything the American people understand or would support. He could easily have been talking about orders like this. So it's highly likely that the law behind this order was carefully vetted by both intelligence committees, Democrat-led in the Senate and Republican-led in the House. (Indeed, today the leaders of both committees gave interviews defending the order.) And in the executive branch, any legal interpretations adopted by George W. Bush's administration would have been carefully scrubbed by President Barack Obama's Justice Department.
Ah, you say, but the scandal here isn't what has been done illegally -- it's what has been done legally. Even if it's lawful, how can the government justify spying on every American's phone calls?
It can't. No one has repealed the laws that prohibit the National Security Agency (NSA) from targeting Americans unless it has probable cause to believe that they are spies or terrorists. So under the law, the NSA remains prohibited from collecting information on Americans.
On top of that, national security law also requires that the government "minimize" its collection and use of information about Americans -- a requirement that has spawned elaborate rules that strictly limit what the agency can do with information it has already collected. Thus, one effect of "post-collection minimization" is that the NSA may find itself prohibited from looking at or using data that it has lawfully collected.
I would not be surprised to discover that minimization is the key to this peculiarly two-party, three-branch "scandal." That is, while the order calls for the collection of an enormous amount of data, much of it probably cannot actually be searched or used except under heavy restrictions. (If I'm right, the administration is likely to find itself forced quite quickly to start talking about minimization, perhaps in considerable detail.)
But why, you ask, would the government collect all these records, even subject to minimization, especially when Wyden was kicking up such a fuss about it? And, really, what's the justification for turning the data over to the government, no matter how strong the post-collection rules are?
To understand why that might seem necessary, consider this entirely hypothetical example. Imagine that the United States is intercepting al Qaeda communications in Yemen. Its leader there calls his weapons expert and says, "Our agent in the U.S. needs technical assistance constructing a weapon for an imminent operation. I've told him to use a throwaway cell phone to call you tomorrow at 11 a.m. on your throwaway phone. When you answer, he'll give you nothing other than the number of a second phone. You will buy another phone in the bazaar and call him back on the second number at 2 p.m."