Today, a judge in New York ruled that the NSA’s collection of phone metadata of United States citizens is, in fact, lawful. This ruling—the result of a suit brought by the American Civil Liberties Union against the United States Government—comes just weeks after another suit brought against the federal government in Washington D.C.received the opposite ruling. Needless to say, this is just the beginning of the legal debate regarding the NSA’s surveillance practices.
The suit was filed in US District Court in New York back in June by the ACLU—former customers of Verizon, one of the phone companies that provides metadata to the NSA—who claimed that the metadata collection violated rights protected under the First and Fourth Amendments. But where Judge Richard J. Leon in Washington D.C. said that the collection was “likely unconstitutional,” the judge in this case, Judge William H. Pauley III, ruled that the collection was, in fact, legal, and dismissed the case against the government.
The basis of Judge Pauley’s ruling, it seems, is based mostly on the broad powers granted to the government from the Patriot Act—which was passed in the wake of the 9/11 attacks—and the fact that there’s no evidence that the metadata has actually been used for any reason other than to fight terrorism. From the ruling:
“There is no evidence that the Government has used any of the bulk telephony metadata it collected for any purpose other than investigating and disrupting terrorist attacks. […] The bulk telephony metadata collection program is subject to executive and congressional oversight, as well as continual monitoring by a dedicated group of judges who serve on the Foreign Intelligence Surveillance Court.”
Furthermore, the ruling is based on the potential the bulk metadata collection has for preventing another attack like 9/11 from happening:
“No doubt, the bulk telephony metadata collection program vacuums up information about virtually every telephone call to, from, or within the United States. That is by design, as it allows the NSA to detect relationships so attenuated and ephemeral they would otherwise escape notice. AS the September 11th Attacks demonstrate, the cost of missing such a thread can be horrific Technology allowed al-Qaeda to operate decentralized and plot international terrorist attacks remotely. The bulk telephony metadata collection program represents the Government’s counter-punch: connecting fragmented and fleeting communications to re-construct and eliminate al-Qaeda’s terror network.”
From where I’m sitting, it’s tough to argue with a lot of these ideas; yes, the Patriot Act and the wide net it allows the government to cast in the name of counter-terrorism, would indeed seem to justify and make legal the NSA’s tactics. That said, that doesn’t really mean that it’s constitutional—which was more or less the point of the ruling in the aforementioned case in Washington D.C.—nor ethically right.
The problem is that all this operates under the assumption that the people in power have the best interests of the citizens in mind. I do actually believe that right now they may—but the issue that arises is that there’s no guarantee that they always will. Giving the power to investigate and monitor the citizenry opens the door to the very real possibility of an abuse of power. Essentially, while the Patriot Act has the intention of stopping the bad guys, it also has the potential to redefine who and what a “bad guy” is.
Furthermore, I find this notion particularly troubling: that because the government hasn’t used that data outside of counterterrorism operations, collecting the data isn’t a violation of the Fourth Amendment. That feels like a specious argument to me.
For instance, say I make copies of all the keys to your house without your knowledge or consent. I have the keys sitting here on my desk. I haven’t used them. I haven’t gone into your house, rifled through your drawers, looked at your photo albums, used your bathroom. But I could.
And then, let’s say you found out about it and said that my possession of keys to your house—again, obtained without your consent or knowledge—was a violation of your privacy. Could my argument that I haven’t used those keys actually hold up in court? I suspect that it couldn’t—but, hey, I’m not a judge.
Again, this is likely not even close to the last time we’ll hear a case on this situation. The good news is that we as Americans have the right to take the United States Government to court, and we have the right to debate and discuss these practices in the open, without fear that we’ll be targeted and face retribution for those actions. However, it’s those very rights that privacy advocates and opponents of the NSA’s techniques are looking to preserve. Like I said, right now I think that the people in charge do actually have the public’s best interests in mind. But the reason we need to fight to hold onto our privacy rights is because that’s an assumption that no one can actually afford to make.