By Stephen J. Schulhofer
Oxford University Press
As controversy continues over the efforts of the National Security Agency to collect the telephone records of millions of innocent Americans, officials have sought to reassure the public that these programs are permitted by the Constitution, approved by Congress, and overseen by the courts. Yet the reality is that these programs fully deserve the discomfort they have aroused.
To be sure, existing case law gives no Fourth Amendment protection to communications transactions records such as numbers dialed, the length of a call, and other digital transmissions data. This conclusion rests on a 1979 decision (Smith v. Maryland), which ruled that the use of a pen register — a device that records numbers dialed from a telephone – is not a search and that a warrant therefore is not required. The Court held that a pen register did not disturb a “reasonable expectation of privacy,” because the number would be available to the phone company anyway.
Even in 1979, the Smith decision was exceptionally problematic. To treat information conveyed to a trusted intermediary, under promise of conﬁdentiality, as if it had been posted on a public billboard is to make nonsense of the Fourth Amendment. This objection to Smith is not the familiar but difficult one that arises when an old constitutional rule has unexpected new implications. Smith’s notion that shared information should have no Fourth Amendment protection would make as little sense in the eighteenth century world of the Framers as it does in our own because privacy has never been equated with mere secrecy. Privacy is something much more important: the right to control knowledge about our personal lives, the right to decide how much information gets revealed to whom and for which purposes.
The religious dissenters who gathered to pray in eighteenth century England and the political dissidents who plotted the American Revolution certainly understood the privacy of shared information. There is no doubt that information about whom we call, how long we talk to them, and when they call us back can produce a deeply revealing picture of our personal activities and associations, even when it contains no details about the content of our conversations.
Only a hermit seeks complete secrecy. For anyone who wishes to inhabit the world, daily life inevitably involves personal associations. Relationships and the information we exchange within them give meaning to our lives and deﬁne a large part of who we are. To insist that information is private only when it remains completely secret is therefore preposterous. Indeed, personal information often becomes more valuable when we share it conﬁdentially with chosen associates who help us pursue common projects. The Framers of our Fourth Amendment intended it to nurture and support civic life, not to provide an alternative to it.
If the Supreme Court’s rule denying Fourth Amendment protection to information shared in confidence was shaky in 1979, it is even more so today. Thirty years ago, communication still consisted primarily of hard-copy correspondence through the Postal Service and conversations that occurred in person or by telephone. So in its day, the Smith decision represented only limited incursion on privacy. Because the computer technology of the time afforded little opportunity to store, collate, and analyze the underlying transactions data, the data by itself provided only a limited window into the private lives of individuals.
Today in contrast, email, Facebook, Twitter, and the like — all services facilitated through third parties — have gone far towards displacing ﬁrst-class mail and the telephone as citizens’ primary means of communication. These programs rely on digital information processed on a server before and during transmission, so they generate an enormous volume of data relating to each communication. Because that data can be stored indefinitely and probed systematically by powerful computers deploying complex algorithms, this digital information now has vastly greater potential for revealing personal details that innocent individuals typically prefer to keep confidential.
Of course, commercial data collection can tell marketing companies quite a bit about our private associations and preferences — an argument for allowing the government to collect and analyze the data too. But the NSA sweeps of communications data are different in two fundamental ways. First, they give the government access to call records that typically are not available to commercial data aggregators. Second, commercial data mining at its worst subjects us only to unwelcome, machine-generated email and phone calls; we are offered products and services we have no desire to buy. This is a nuisance, but the harm is trivial.
The dangers are entirely different when personal information becomes available to the government with its vast power over the lives of individuals. Government ofﬁcials can deploy computer power that dwarfs anything available in the private sector and if they are looking for patterns that can reveal confidential details, they can learn a great deal about anyone very quickly. Investigators seeking to deter leaks about controversial government programs can use data mining software to ascertain a journalist’s conﬁdential sources. Data mining gives the government access to a citizen’s political and religious beliefs, personal associations, sexual interests, or other matters that can expose the individual to political intimidation, blackmail, or selective prosecution for trivial infractions. Unconstrained government data mining has unique potential to dampen creativity, impoverish social life, and chill the political discussion and association that are essential pillars of our democracy.
For many Americans, unfortunately, all this is beside the point because fear of terrorism prompts them to value their safety from attack over the resulting loss of civil liberties. This notion of an inherent “trade-off” between the two is profoundly misleading. Decisions to sacrifice privacy can easily divert attention and energy from better ways to prevent attacks — for example, hiring more agents who understand foreign languages or investing in the protection of our ports and chemical plants.
The supposed liberty-security trade-off is misleading for a second and more fundamental reason, one that goes to the heart of the Fourth Amendment. In debates over strong surveillance powers, proponents and skeptics alike typically assume that the Fourth Amendment, if allowed to apply, will create an impenetrable wall of protection for any information we decide to consider “private.” This assumption is widely held but completely inaccurate. The Fourth Amendment never places information entirely beyond the government’s reach; its point is only to regulate surveillance, in order to assure accountability. The most intimate areas of our homes can be searched, provided that investigators can demonstrate probable cause for a judicial warrant. Other, less intrusive searches are allowed under more permissive standards, but provided again that investigating police and prosecutors remain subject to oversight.
As a result, the claim that we must opt for more privacy or more security presents a false choice. The relevant alternatives are surveillance with oversight or surveillance without. Our Fourth Amendment history makes clear that the latter option, though inevitably preferred by officials guarding their freedom of action, always leads to abuse — unnecessary abuse because the same public safety objectives typically could have been achieved simply by putting in place reasonable independent systems to assure accountability.
Thus, the debate over NSA data sweeps has largely sidestepped the one issue that should be straightforward and uncontroversial: the need for effective, independent Congressional and judicial oversight. Although President Obama and his administration have spoken repeatedly of Congressional briefings and authorization by the Foreign Intelligence Surveillance (FISA) Court, the reality is that the NSA program faces few independent checks. The FISA court is required to approve data collection requests for any “authorized investigation,” and its opinions explaining what this crucial term means are classified “top secret.” Some members of Congress are briefed, but only in vague terms, in secret sessions that are closed even to the staff they need for help on these complex issues. Barring a sensational (and illegal) leak that brings the matter to public attention, political realities ensure that Congress will remain powerless on the sidelines.
The NSA data sweeps therefore may satisfy the letter of the law, but they are profoundly at odds with the spirit of the Fourth Amendment because genuine checks and balances are almost entirely absent. As government powers of this sort expand, the sheltered spaces we need for personal autonomy and political freedom gradually disappear.
Fidelity to our Fourth Amendment tradition demands that the FISA court have the authority to verify the basis for the surveillance measures it is asked to approve and that it have the obligation to make its key legal rulings available, so that the public can know what kinds of powers it has given its government. Finally, Congress must be briefed in ways that encourage rather than impede its involvement.
These Fourth Amendment oversight practices can give national security officials the authority they need while at the same time building confidence that powerful surveillance tools will not put at risk the freedoms that are the foundations of our democracy.