Who You Gonna Call?

That’s what the government wants to know.  News broke overnight that the National Security Agency (NSA) has a warrant to get information on every call made over the Verizon network.  There has been no word yet as to whether or not other carriers are under a similar order. According to a report in the Washington Post, “The order appears to require a Verizon subsidiary to provide the NSA with daily information on all telephone calls by its customers within the United States and from foreign locations into the United States.”  Seems pretty outrageous, right?  But the order is signed by a judge overseeing domestic intelligence surveillance.  The Obama administration maintains that this is required to help fight terrorism.  The ACLU maintains that the practice of collecting these records is “beyond Orwellian.”  What is at play here is the inherent tension between the Foreign Intelligence Surveillance Act and the Fourth Amendment.

The Foreign Intelligence Surveillance Act, often referred to simply as FISA, was passed in 1978 in response to serious questions about domestic intelligence activities.  Many readers may be familiar with the FISA in the context of the warrantless wiretap scandal of 2002.  The law provided judicial and congressional oversight to these activities with the goal of providing protection for citizens against unreasonable searches. The law has undergone many revisions and updates, most notably in the PATRIOT Act and again in 2008.  The goal of FISA is to collect intelligence on foreign entities and activities in the United States.  According to the US Department of Justice, “Unlike domestic criminal surveillance warrants issued under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the “Wiretap Act”) , agents need to demonstrate probable cause to believe that the “target of the surveillance is a foreign power or agent of a foreign power,” that “a significant purpose” of the surveillance is to obtain “foreign intelligence information,” and that appropriate “minimization procedures” are in place. 50 U.S.C. § 1804. ”   Further, the FISA forbids the production of records on a US citizen based on the First Amendment (more on the First Amendment in a later post).

In contrast to the FISA, stands the Fourth Amendment.  The Fourth Amendment, while it certainly didn’t consider wiretaps and phone records, is designed to protect the property and security of individuals against unreasonable government seizure.  “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  In other words, government entities cannot launch broad-based searches of individuals or their homes or property without a reasonable belief that a crime has occurred and the individual is somehow connected.

In 2003, however, the Memo on Military Force Combat US 2003 was written by Bush administration officials that indicated that “the Fourth Amendment has no application to domestic military operations.”  That included the communication of US individuals with foreign nationals overseas.  In fact, the FISA was specifically updated to protect wireless carriers that were cooperating with government agencies in this regard.  There are some differences between the current situation, in which all records of all calls are being provided to the NSA on an “ongoing daily basis,” and that in which the government was secretly wiretapping calls between individuals in the US and those suspected of terrorist activities (or those simply on a list because of their geographic location).

The current situation is an interesting study in the conflict between constitutional rights and national security.  Is the government going too far in the name of national security, or is it doing the job its citizens should expect of it?

Posted on June 6, 2013, in U.S. Constitution and tagged , , , , , . Bookmark the permalink. Comments Off on Who You Gonna Call?.

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