Communication Currents

On June 5, 2013 Edward Snowden leaked documents to The Washington Post and to London’s Guardian newspaper revealing the National Security Agency (NSA) has been collecting the telephone records and Internet use of tens of millions of Americans each day.

Uh oh. Cue desired sound effects: gnashing of teeth and tearing of hair.

Oops. Wrong sound effects. Cue sounds of snoring, please.

Gee, Mr. Snowden, it was well intentioned of you to go to such lengths (spending a month in the Moscow Airport, no less) to let us know that the NSA has been collecting all of our telephone “metadata,” but we knew that already. In fact, we’ve known this since 2006, when USA Today reporter Leslie Caulie broke the story the National Security Agency had been secretly collecting the phone call records of tens of millions of Americans, using data that AT&T, Verizon and other telephone companies provided. Caulie explained that “The program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity.” Were we so naïve that we assumed the NSA would stop collecting our telephone records just because USA Today reported it in 2006? I don’t think so.

In case anyone forgot the 2006 news stories about the NSA collecting metadata on all of us, all we have to do is follow the trail of the lawsuits charging the NSA has been violating our privacy. For example, the Electronic Frontier Foundation filed suit, claiming that AT&T had given the NSA access to customer telephone records as part of a domestic spying program that President George W. Bush had authorized. The Department of Justice argued the NSA program of collecting metadata was justified under Section 215 of the Foreign Intelligence Surveillance Act, as amended by the USA PATRIOT Act.

There is an important distinction we need to make before we consider a few court cases. When the NSA is collecting “metadata,” meaning the telephone records of whom we call and how long we talk with them, the NSA is not actually listening to the content of our calls. When the NSA does want to eavesdrop on a conversation, however, it can do so without a warrant (known as “warrantless wiretapping”). Congress actually authorized this warrantless wiretapping when it passed the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008, 50 U.S.C. S 1881(a).

A number of organizations such as Amnesty International, Human Rights Watch and The Nation magazine sued (former) Director of National Intelligence James Clapper, challenging the NSA’s power to eavesdrop on telephone calls and e-mail messages. The U.S. Supreme Court ruled against the plaintiffs and in favor of the NSA in February 2013, however. The High Court held Amnesty International, Human Rights Watch and The Nation lacked standing because they could not show they had suffered any actual harm from the NSA’s right to eavesdrop on them. By ruling the plaintiffs did not have standing, the U.S. Supreme Court conveniently side-stepped the question of whether or not the 2008 FISA Amendments Act permitting warrantless wiretapping was constitutional. (The 2008 FISA Amendments Act also granted retroactive immunity to all of the telephone companies defending lawsuits after they had acceded to the NSA’s request for metadata.) 

Assuming we are not chatting with suspected members of Al Qaida, however, the NSA is more likely to collect metadata on us rather than listening to our phone conversations with Aunt Minnie. So then the question becomes, is it legal for them to do this? Well, yes, the warrantless collection of metadata is permitted under a Fourth Amendment legal principle called the “third party doctrine.” Long before September 11, 2001, the U.S. Court of Appeals for the District of Columbia held in 1978 that the government could subpoena journalists’ telephone toll-call records because when journalists placed calls, they were “exposing their actions to a third party” (the telephone company). A year later the U.S. Supreme Court upheld the right of law enforcement officials to use a “pen register” (a mechanical device that records the numbers dialed on a telephone) without a warrant in the 1979 case Smith v. Maryland. In 2006 the U.S. Supreme Court upheld Reporters Committee and Smith v. Maryland precedents in New York Times Co. v. Gonzales, ruling that the Department of Justice could subpoena the telephone records of two reporters. Still not convinced? Well, in August 2013 federal judge Claire V. Eagan once again ruled that the NSA has the legal authority under the USA PATRIOT Act to gather our phone call metadata to conduct “link analysis” to see who might be talking with terrorists in hidden cells.

We may not like these court decisions; however, if we do not like the laws, we can ask Congress to change them. Here, Edward Snowden should get some credit, because he did instigate an ongoing debate about the NSA in Congress. In July 2013, the House of Representatives voted 217-to-205 to permit the NSA to continue both its telephone and its Internet dragnets for “metadata.” The debate will now shift to the Senate.

Of course, this discussion has focused only on the extent to which the government may collect our metadata, but we have to acknowledge private companies salivate at the prospect of collecting staggering amounts of our personal information, often with our acquiescence. For example, Facebook recently settled a class-action lawsuit after some of its members sued when they learned Facebook was using their names and photos to endorse products in Facebook ads sent to their friends.

In March 2013, Google settled a Street View case after 38 state attorneys general filed suit. Google was fined $7 million for using its Street View program to surreptitiously capture private data such as e-mail messages and Internet activity from residential Wi-Fi networks while its camera person was photographing individual homes. Although Google had quietly begun collecting data from residential Wi-Fi networks in 2007, the U.S. government was not aware Google was doing so until 2010, when the German government found out and notified the FCC. This forces me to ask the question, “Should I be angry with Google for spying on people without their knowledge?” Gosh, maybe I should, but first I’m going to google the news stories to learn more about the Street View project.

While I’m at it, perhaps I should be more grateful to Edward Snowden. Even if we have known since 2006 that the NSA was collecting our metadata, at least Ed Snowden rekindled the debate about the terribly delicate balance between protecting our privacy and identifying terrorists. So maybe we should say, “Thanks, Edward Snowden. Sure hope the Russians aren’t hiding microphones in your flowerpots.”