This Court Case Could Kneecap the NSA

Why a judge's assault on 'Orwellian' surveillance could cripple the spy agency's legal and political support.

On Monday, a Federal District Court judge ruled that the National Security Agency's collection and storage of all Americans' phone records probably violates the Constitution and is an "almost Orwellian" system that "surely...infringes on 'that degree of privacy' that the founders enshrined in the Fourth Amendment." It's the first successful legal challenge to NSA surveillance since June, when Edward Snowden began a cascade of NSA disclosures. It might just set up the most important legal debate about surveillance and personal privacy in decades. And it threatens to undermine one of the major legal foundations of the NSA's vast surveillance network.

Judge Richard Leon of the District of Columbia, a George W. Bush appointee, ordered the government to stop collecting the phone records of two plaintiffs who brought suit against the NSA's so-called metadata program and to destroy the information it has on them now. He stayed his injunction, pending an almost certain appeal by the Obama administration. But if the case is eventually heard by an appeals court -- and there are reasons to think it will be -- it would be the highest-stakes and highest-profile battle to date over the NSA's program, and a proxy argument for the broader ethical dimensions about massive government surveillance. Think of it as the NSA's answer to the Scopes Monkey Trial -- a public, and undoubtedly passionate debate about whether massive, technologically-enabled surveillance that would have been impossible a few decades ago is still compatible with core constitutional principles of privacy and freedom from unreasonable searches.

The judge ruled that the government's collection of phone records relied on an outdated Supreme Court ruling, from 1979, that metadata isn't protected by the Fourth Amendment -- an analysis that, on its own, is likely to ignite considerable debate. "The ubiquity of phones has dramatically altered the quantity of information that is now available and, more importantly, what that information can tell the Government about people's lives," Leon wrote. "I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones."

But that case, Smith v. Maryland, is part of the foundation of NSA's global surveillance system, which relies on the collection of all kinds of metadata -- from phone records, to email header information, to Internet addresses. In a more recent ruling about whether the government needs a warrant to install a GPS tracking device on someone's car, the Supreme Court narrowly opened the door to a future ruling on whether metadata should now be protected under the Constitution, in light of the dramatic changes in technology over the past few decades. Leon's ruling may be the first step towards bringing that issue before the nation's highest court, and potentially altering the way the global surveillance system is run.

In some respects, momentum has been building towards this moment. The metadata program was nearly defanged over the summer, in a rare show of bipartisan support in the House of Representatives. Since then, there have been further revelations of government spying, including on U.S. allies, and a presidential review panel has reportedly recommended a sweeping set of reforms at the NSA, including prohibiting the agency from storing Americans' phone records. Lawmakers are expected to take up legislation limiting the NSA's powers next year, and the Senate Intelligence Committee has launched an investigation into intelligence collection programs.

Since June, the Obama administration has mounted a public relations offensive in support of the NSA program and has told lawmakers that it is legal and necessary to protect Americans from terrorist attacks -- an argument that Judge Leon found unpersuasive. But officials have rarely had to publicly argue the legality and constitutionality of the program in court. The only judges to review the program have done so in secret over the past six years, and no lawyer has been present to argue that the program should be changed or discontinued.

In finding that the metadata program probably violates the Fourth Amendment, Leon ruled on broad grounds, leaving the D.C. Court of Appeals a number of potential options. They could dismiss the case -- ruling, as previous courts have, that the plaintiffs lack standing to bring the suit because they can't prove that they were individually subjected to secret surveillance.

But that was before Snowden's leak, which provided documented evidence that the government was collecting phone records. Administration officials subsequently confirmed the program exists, and that it continues to collect information about hundreds of millions of Americans. The plaintiffs in the case, led by conservative public-interest attorney Larry Klayman, arguably have the proof of standing that has eluded prior challengers to government surveillance.

The administration would also have a hard time arguing that the need to preserve national security secrets is reason not to hear the case. Since the Snowden leak, myriad officials, including the top lawyer for the intelligence agencies, the director of the National Security Agency, and the president himself have publicly defended the program as legal and necessary for stopping terrorist attacks.

"Thanks to Snowden, the government is not really in a position to tell the D.C. Circuit, ‘You can't reach the merits [of this case] because of state secrets," said Stephen Vladeck, a professor at American University's College of Law who focuses on national security. Vladeck said the appeals court could also send the case back to Leon, who did not reach a ruling on the legality of the program under the Patriot Act, and basically tell him to start over. But Vladeck predicted that the court would hear the case, and that it will be a momentous event. "I think the government would push back and you'll have a full-throated argument," for and against, Vladeck said.

It's unclear how Leon's ruling would affect other challenges pending in at least three other federal courts. But news of his decision seemed to renew the hopes of others who've brought challenges to the metadata program and have tried, unsuccessfully, to fight other aspects of NSA surveillance over the years. Jameel Jaffer, the deputy legal director for the American Civil Liberties Union, which brought a challenge to the metadata program in New York, called Leon's ruling "a strongly worded and carefully reasoned decision that ultimately concludes, absolutely correctly, that the NSA's call-tracking program can't be squared with the Constitution. ...We hope that Judge Leon's thoughtful ruling will inform the larger conversation about the proper scope of government surveillance powers, especially the debate in Congress about the reforms necessary to bring the NSA's surveillance activities back in line with the Constitution."

Of course, the ruling could end up being short-lived. Paul Rosenzweig, a homeland security official in the Bush administration, called Leon's ruling "remarkable," but also "unpersuasive," and predicted that it wouldn't stand.

The judge's ruling also had a particular irony for critics of the NSA program and supporters of Snowden's disclosures. "As far as I know, Snowden is the first person charged under the Espionage Act for revealing something a court later ruled unconstitutional," tweeted Trevor Timm, an activist with the Electronic Frontier Foundation.



Tone-Deaf at the Listening Post

My day at the National Security Agency headquarters at Fort Meade.

For an organization that is so efficient at amassing data intended to be kept secret, the National Security Agency seemed surprisingly clumsy in accepting data that was volunteered to them. I'd emailed the bits and pieces of my personal data necessary to be cleared for access to the agency's headquarters in Fort Meade a week before the scheduled visit, with zero response. As it turns out, an NSA server has crashed, they told me, creating havoc with some email accounts. This sort of hiccup humanizes the agency, though it also raises questions about their vulnerability.

Let's be clear: the only reason I was being invited to the NSA in the first place was Edward Snowden and Glenn Greenwald. The drip-drip-drip of the past six months of document releases and press stories has tarnished the public image of an agency that, until recently, pretended to be draped in an invisibility cloak. After all, for decades the U.S. government refused to acknowledge the NSA's very existence. Until this year, its public profile remained pretty minimal. This strategy was no longer possible in a post-Snowden era; it has begun to dawn on the agency that they do not have the best public image. In response, NSA officials have warily embraced the press, agreeing to this weekend's sit-down with 60 Minutes, for example. I profited from this new, tentative strategy of talking to outworlders on background (in my case, with a contingent organized by the University of Texas' Strauss Center). As NSA officials admit, however, this is only the first step of a long learning curve of how to engage the public in why they do what they do -- without revealing exactly how they do it.

I don't know a ton about intelligence, but I do know a little bit about strategic communications, so from that vantage point it was interesting to see the NSA's nascent efforts at outreach and media response. After a brief tour of the cryptological museum, we were whisked into the "Corporate Communications" suite to receive a series of briefings from high-ranking NSA officials, including the general counsel, head of signals intelligence, and the director, Gen. Keith Alexander.

So how persuasive is the NSA pushback against its post-Snowden image as a voracious vacuum of information about U.S. citizens? It's a mixed bag. On the one hand, NSA officials were refreshingly candid in many of their assessments. For one thing, they were upfront in acknowledging the damage that Snowden had wreaked on agency morale and recruitment. Applications to work at the NSA are down by more than one third, and retention rates have also declined. This is a serious problem for an agency that, until now, has thrived because of an esprit de corps within the organization. Traditionally, when analysts joined the NSA, they joined for life. This is changing, and not for the better from the NSA's perspective. Snowden has also changed the way the NSA is doing business. Analysts have gone from being polygraphed once every five years to once every quarter.

The NSA also has crafted some responses to the public perception that they're an agency run amok. In recent years, the Foreign Intelligence Surveillance Act (FISA) court has reprimanded the agency about their serial inability to comply with court rulings. From their perspective, however, the National Security Agency is unique because it faces oversight from all three branches of government. Multiple officials compared the compliance obligations to a U.S. financial firm post-Sarbanes-Oxley and Dodd-Frank. While one official acknowledged, "this agency has made mistakes," they also pointed out that they've responded robustly. They have boosted the number of compliance officers to more than 300. Furthermore, knowledge of the FISA reprimands was only made public because the director of national intelligence, James Clapper, declassified the court rulings in the interest of transparency. Furthermore, because the NSA is obligated to report even picayune or mistaken cases of noncompliance, they come off looking worse than they actually are. "The raw numbers look terrible," one official acknowledged, but stressed that the percentage of non-compliance instances is very small.

These points have some validity -- but not total validity. For example, the NSA can point to their triple-branched oversight as much as they like, but as Ryan Lizza and others have documented, that doesn't mean that the oversight is terribly effective. Furthermore, true or not, comparing a government organization to, say, Goldman Sachs in terms of onerous regulation might not resonate terribly well with the American public.

Another issue is that the NSA wants to paint itself as a dispassionate agency responding to constituent demands. The truth is stickier. According to NSA officials, the agency is a passive, customer-driven organization, catering to the needs of the foreign policy agencies needing intelligence, such as the departments of State and Defense. The thing is, the current head of the NSA is "dual-hatted" -- Alexander is director of both the NSA and U.S. Cyber Command, a military command that happens to be the biggest customer of the NSA's services. Employees at Fort Meade work for both agencies. Furthermore, NSA officials have lobbied the White House strongly to preserve this dual-hatted relationship. These lobbying efforts bore fruit last week, thereby scuppering some of the reform proposals made by President Barack Obama's task force on NSA reform.

The NSA's biggest strategic communications problem, however, is that they've been so walled off from the American body politic that they have no idea when they're saying things that sound tone-deaf. Like expats returning from a long overseas tour, NSA staffers don't quite comprehend how much perceptions of the agency have changed. The NSA stresses in its mission statement and corporate culture that it "protects privacy rights." Indeed, there were faded banners proclaiming that goal in our briefing room. Of course, NSAers see this as protecting Americans from foreign cyber-intrusions. In a post-Snowden era, however, it's impossible to read that statement without suppressing a laugh.

It might be an occupational hazard, but NSA officials continue to talk about the threat environment as if they've been frozen in amber since 2002. To them, the world looks increasingly unsafe. Syria is the next Pakistan, China is augmenting its capabilities to launch a financial war on the United States, and the next terrorist attack on American soil is right around the corner. They could very well be correct -- except that the American public has become inured to such warnings over the past decade, and their response has been to tell politicians to focus on things at home and leave the rest of the world alone. A strategy of "trust us, the world is an unsafe place" won't resonate now the way it did in the immediate wake of the Sept. 11 attacks.

The NSA's attitude toward the press is, well, disturbing. There were repeated complaints about the ways in which recent reportage of the NSA was warped or lacking context. To be fair, this kind of griping is a staple of officials across the entire federal government. Some of the NSA folks went further, however. One official accused some media outlets of "intentionally misleading the American people," which is a pretty serious accusation. This official also hoped that the Obama administration would crack down on these reporters, saying, "I have some reforms for the First Amendment." I honestly do not know whether that last statement was a joke or not. Either way, it's not funny.

There is no going back to a pre-Snowden era for the NSA. To be fair, the agency knows this. As they interact with the outside world, they'll move down the learning curve and learn how to articulate their position better. It's a position that should certainly be heard. It might behoove the NSA to do some active listening of its own -- and not through their normal surveillance channels either. Until the NSA appreciates the shifts in the political terrain, its officials will continue to be trapped in a reactive posture with respect to the outside world. That's not good for either them or us.