Two months ago, a “top secret” order was issued at the request of the FBI by a judge on the Foreign Intelligence Surveillance Court. It ordered Verizon, the telecommunications company to provide the NSA with daily reports of “all call detail records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.”
The order expires on July 19. So, as you read this article and if you are a Verizon customer as I am, and if you have family in Canada, which I do, your phone calls could currently be monitored. Allow me to revise, or, if you have family in America that you call, you could be monitored.
To say that this order is shocking is an understatement. The order includes telephone calls by Americans to callers overseas and within the country. It isn’t issued in relation to any type of tangible investigation. It is a completely ridiculous outrage. It is a vindication of the libertarian movement in America that believes that absolute power corrupts and that that the leviathan cannot handle the girth of the power it has been given.
The Patriot Act as well as the Foreign Intelligence Surveillance Act is what provide our government with this intrusive power. The Act allows a Foreign Intelligence Surveillance Judge to make these types of decisions. And that is exactly what happened here.
The ACLU reacted appropriately stating: “the program could hardly be any more alarming. It’s a program in which millions of innocent people have been put under the constant surveillance of government agents. It’s analogous to the FBI stationing an agent outside every home in the country to track who goes in and who comes out . . . . It is beyond Orwellian, and it provides further evidence of the extent to which basic democratic rights are being surrendered in secret to the demands of unaccountable intelligence agencies.”
The law requires that telephone record seizures be relevant to an investigation, prompting one expert to comment that the FBI must be involved in the broadest investigation of all time since everyone’s call records are being monitored.
The problem lies in judicial interpretation of our laws. For too long, SCOTUS and its progeny have held that we as Americans hold no “expectation of privacy” in our phone call records. The court says that like sending a mailed envelope, our conversation is private but the information on the front of the envelope is not. With phone calls, this means that records of what number was called and which number was received does not need a warrant to be accessed. Herein lies the problem.
As technology evolves, courts have to struggle to catch up. When courts have spent decades bending constitutional protections, they risk breaking under new technologies.
Here, this FBI request, makes the order seem as if is only requesting the boring old call/receive data of a cell phone. But in reality, the FBI and NSA are requesting “Metadata” which is jargon for a lot more than the equivalent of the outside of an envelope.
“Metadata” is both a broad and ambiguous term that includes the location of towers pinged through cell phone calls. This may even include where a traveling caller visited during his call. Certainly metadata includes broader implications than the outside of an envelope. Thus, the government is again infringing on the Fourth Amendment’s probable cause requirement prior to seizing our personal information.
This is the kind of scandal that should create a major sea of change in Washington in favor of civil liberties. We have the right to be secure in our person, papers and effects as well as the technological equivalent. If we fail to protect it, we only hurt ourselves.