Permanent Record(70)

The Constitution was written in the eighteenth century, back when the only computers were abacuses, gear calculators, and looms, and it could take weeks or months for a communication to cross the ocean by ship. It stands to reason that computer files, whatever their contents, are our version of the Constitution’s “papers.” We certainly use them like “papers,” particularly our word-processing documents and spreadsheets, our messages and histories of inquiry. Data, meanwhile, is our version of “effects,” a catchall term for all the stuff that we own, produce, sell, and buy online. That includes, by default, metadata, which is the record of all the stuff that we own, produce, sell, and buy online—a perfect ledger of our private lives.

In the centuries since the original Constitution Day, our clouds, computers, and phones have become our homes, just as personal and intimate as our actual houses nowadays. If you don’t agree, then answer me this: Would you rather let your coworkers hang out at your home alone for an hour, or let them spend even just ten minutes alone with your unlocked phone?

The NSA’s surveillance programs, its domestic surveillance programs in particular, flouted the Fourth Amendment completely. The agency was essentially making a claim that the amendment’s protections didn’t apply to modern-day lives. The agency’s internal policies neither regarded your data as your legally protected personal property, nor regarded their collection of that data as a “search” or “seizure.” Instead, the NSA maintained that because you had already “shared” your phone records with a “third party”—your telephone service provider—you had forfeited any constitutional privacy interest you may once have had. And it insisted that “search” and “seizure” occurred only when its analysts, not its algorithms, actively queried what had already been automatically collected.

Had constitutional oversight mechanisms been functioning properly, this extremist interpretation of the Fourth Amendment—effectively holding that the very act of using modern technologies is tantamount to a surrender of your privacy rights—would have been rejected by Congress and the courts. America’s Founders were skilled engineers of political power, particularly attuned to the perils posed by legal subterfuge and the temptations of the presidency toward exercising monarchical authority. To forestall such eventualities, they designed a system, laid out in the Constitution’s first three articles, that established the US government in three coequal branches, each supposed to provide checks and balances to the others. But when it came to protecting the privacy of American citizens in the digital age, each of these branches failed in its own way, causing the entire system to halt and catch fire.

The legislative branch, the two houses of Congress, willingly abandoned its supervisory role: even as the number of IC government employees and private contractors was exploding, the number of congresspeople who were kept informed about the IC’s capabilities and activities kept dwindling, until only a few spe cial committee members were apprised in closed-door hearings. Even then they were only informed of some, but not all, of the IC’s activities. When rare public hearings on the IC were held, the NSA’s position was made strikingly clear: The agency would not cooperate, it would not be honest, and, what was worse, through classification and claims of secrecy it would force America’s federal legislatures to collaborate in its deception. In early 2013, for instance, James Clapper, then the director of National Intelligence, testified under oath to the US Senate Select Committee on Intelligence that the NSA did not engage in bulk collection of the communications of American citizens. To the question, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Clapper replied, “No, sir,” and then added, “There are cases where they could inadvertently perhaps collect, but not wittingly.” That was a witting, bald-faced lie, of course, not just to Congress but to the American people. More than a few of the congresspeople to whom Clapper was testifying knew very well that what he was saying was untrue, yet they refused, or felt legally powerless, to call him out on it.

The failure of the judiciary was, if anything, even more disappointing. The Foreign Intelligence Surveillance Court (FISC), which oversees intelligence surveillance within the United States, is a specialized body that meets in secret and hears only from the government. It was designed to grant individual warrants for foreign intelligence collection, and has always been especially accommodating to the NSA, approving well over 99 percent of the agency’s requests—a rate more suggestive of a ministerial rubber stamp than a deliberative judicial process. After 9/11, the court expanded its role from authorizing the surveillance of specific individuals to ruling on the legality and constitutionality of broad programmatic surveillance, without any adversarial scrutiny. A body that previously had been tasked with approving the surveillance of Foreign Terrorist #1 or Foreign Spy #2 was now being used to legitimize the whole combined infrastructure of PRISM and upstream collection. Judicial review of that infrastructure was reduced, in the words of the ACLU to a secret court upholding secret programs by secretly reinterpreting federal law.

When civil society groups like the ACLU tried to challenge the NSA’s activities in ordinary, open federal courts, a curious thing happened. The government didn’t defend itself on the ground that the surveillance activities were legal or constitutional. It declared, instead, that the ACLU and its clients had no right to be in court at all, because the ACLU could not prove that its clients had in fact been surveilled. Moreover, the ACLU could not use the litigation to seek evidence of surveillance, because the existence (or nonexistence) of that evidence was “a state secret,” and leaks to journalists didn’t count. In other words, the court couldn’t recognize the information that was publicly known from having been published in the media; it could only recognize the information that the government officially confirmed as being publicly known. This invocation of classification meant that neither the ACLU, nor anyone else, could ever establish standing to raise a legal challenge in open court. To my disgust, in February 2013 the US Supreme Court decided 5 to 4 to accept the government’s reasoning and dismissed an ACLU and Amnesty International lawsuit challenging mass surveillance without even considering the legality of the NSA’s activities.