Nearly 250,000 Americans contacted their congresspeople Feb. 11 about ending the mass surveillance programs run by the National Security Agency, according to the Electronic Frontier Foundation. The EFF, a major organizer of “The Day We Fight Back,” as the event was dubbed, was supported by such companies as Google and Mozilla. The day is a response to the secret privacy-invasive surveillance projects started by the U.S. government in the wake of 9/11, against which evidence has been building up for years and which have received such dramatic attention since Edward Snowden’s leak of classified details on them in 2013. Clearly, the cat is out of the bag.
Yet amid this conflagration of public disapproval, some on Capitol Hill (or in Fort Meade, Md.) are trying to salvage the spying operations. Congress has successfully done so before: in Hepting v. AT&T, the EFF helped an AT&T customer sue the telecommunications conglomerate for collaborating with the NSA to intercept its customers’ Internet traffic. The 2006 case dragged on, and in 2008, Congress amended the Foreign Intelligence Surveillance Act to give companies like AT&T retroactive immunity from being sued for their collaboration. The case was dismissed in 2009.
Today, congresspeople like Sen. Dianne Feinstein (a California Democrat) are trying to pull a similar move. Her FISA Improvements Act (S. 1631) purports to reform the surveillance system, yet expressly authorizes bulk communication record collection programs. True, the government still needs a warrant to listen in on your phone calls, but now and under the FISA Improvements Act it can still know precisely who you call, for how long, when and where. It does so through a secret approval after a secret application to the FISA Court, which can only be challenged in secret. Not only that, the data is collected for future reference without any specific approval. Hardly the Fourth Amendment’s requirement of a search warrant “upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Now, do not think that this is a uniquely American problem. The category our country so shamefully finds itself in naturally includes the traditionally authoritarian states of China and Russia. But Australia, New Zealand, Canada and the United Kingdom (together with the United States, the “Five Eyes”) are also members of the mass surveillance club. One suspects that many more countries — Iran, Belarus, Ukraine — would like to conduct mass surveillance, if only they had the means.
Nor is it a uniquely 21st-century problem. In the 1970s, it increasingly came to light that the executive branch was overstepping its constitutional boundaries. In particular, the Central Intelligence Agency had been illicitly opening citizens’ mail. Congress formed the Church Committee, led by Sen. Frank Church, to rein in presidents Richard Nixon and Gerald Ford. The Church Committee published many damning reports, which led to an increase in oversight legislation. In 1975, Church himself said, “If this government ever became a tyrant, if a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny. … Such is the capability of this technology.”
Unfortunately, today’s Fourth Amendment violations are not a matter of Congress opposing the president. Indeed, the executive overreach is supported by a large bipartisan effort in the legislature. There are some promising efforts, such as the USA Freedom Act, sponsored by Rep. Jim Sensenbrenner (R-Wis.) and Sen. Patrick Leahy (D-Vt.) in their respective houses. But ultimately, we must look to the third branch of government, our judiciary, to rule on this matter.
Legislative efforts are not a strong enough indictment of the abusive practices of the past decade and a half. What is changed by one Congress can be undone by the next. If we are to learn our lesson from this debacle, a significant portion of the warrantless surveillance must be skewered in our nation’s highest court and ruled unconstitutional.
Today, lawyers and judges still cite Katz v. United States, a 1967 ruling involving telephone booth monitoring that greatly expanded Fourth Amendment protections. The best-case scenario is that, 47 years from now, judges still base privacy protection law off the great rulings of those wise men and women in the 2010s.
Progress is already being made. In the ongoing case Jewel v. NSA, the District Court of the Northern District of California has prevented the government from having the case dismissed based on the much-maligned “state secrets” privilege. In Klayman v. Obama, D.C. District Judge Richard Leon has indicated he will likely rule the NSA’s phone record collection unconstitutional. Granted, another district judge came to the opposite conclusion in a separate case, but either way the issue is working its way up to the Supreme Court for a final judgment.
As more and more information is revealed about the extraordinarily broad collection of information by the U.S. government, at home and abroad, and by other governments around the world, the bleaker the situation seems to look. But there is a strong and growing opposition movement, as shown by the Feb. 11 turnout. With increased pressure on Congress, we will hopefully see beneficial reforms pass, and even the Supreme Court may soon feel ready to close this dark chapter in the history of American civil rights. We have a long way to go, but the tide is turning.
Kim Post is a copy editor at The Triangle. He can be contacted at [email protected]