Privacy, the NSA, and Impunity

by Wayne McCormack

The battle over NSA surveillance probably has less to do with actual invasions of privacy than with the sense that government has decided that it can do whatever it wants to do with total impunity. The existence of secret NSA programs is not at all surprising to those who have paid attention to this issue for the last decade. The fact is that our Government has never been open or transparent about what it is doing, and we knew that it was not.

For example, Attorney General Gonzales in a number of public statements during 2005-06 was always careful to say that “the program the President has disclosed” is legal, leaving open the inference that there was much more that had not been disclosed.

A word of caution here. This remains a highly classified program. . . . So my remarks today speak only to those activities confirmed publicly by the President, and not to other purported activities described in press reports. These press accounts are in almost every case, in one way or another, misinformed, confusing, or wrong. And unfortunately, they have caused concern over the potential

breadth of what the President has actually authorized.

Nowhere in the many public statements of the era, all of which are contained on the Department of Justice website (, is there any mention of the undisclosed activities of the NSA. So naturally we would get “press accounts [that were] misinformed, confusing, or wrong.” But we probably got some information that was accurate.

What do we know now in early July 2013? Very little actually. We know that NSA and its affiliated agencies are capable of reading all of our e-mail and listening to our phone conversations. Do they do so? They would have us believe they are too busy to bother with us little people. But it is also clear that if the “metadata mining” reveals a pattern of curiosity, then it is a simple matter to reach into the grab-bag and pull out everything any particular individual has said for a long period of time.

DNI Clapper said that “The court only allows the data to be queried when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization.” This pretty clearly states that no warrant, and apparently not even a specific permission from the FISA Court, is required for reading my e-mails or listening to my phone conversations.

The problem, however, is that now the Court has approved “programmatic” surveillance. According to press accounts, the court has interpreted the word “relevant” to mean basically all electronic communications, which can be monitored for suspicious patterns. And under the “reasonable suspicion” standard, there is no judicial review when someone decides to look into the content of those communications.

The justification for this level of engagement with communication begins with a Supreme Court ruling in 1979 that we do not have a “reasonable expectation of privacy” in the phone numbers we dial because they go through a service provider – thus a “pen register” (the recording of numbers dialed) is not a “search.” OK, questionable but understandable. The second step is that the Court in 1968 ruled that a “stop and frisk” may be justified by a “reasonable suspicion” of unlawful behavior. It is important to realize that the stop-and-frisk ruling started from the premise that the Fourth Amendment applied and that the frisk was a search. The only reason that no warrant was required was because it occurred on the street when there was no time to go to a judge in the face of what appeared to be an immediate threat. “The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.”

Combining these holdings for some observers gives rise to the idea that government can collect all phone numbers and e-mail addresses from everyone in the U.S. because those go through third-party providers. Well, that does seem to be what the Supreme Court said, although they were talking in that case about a specific investigation with its own “reasonable suspicion.” Now what about reading your e-mail because your pattern seems suspicious? That’s where the analysis breaks down unless there is an immediate threat of violence displayed in the pattern itself. I’m not enough of a computer geek to know whether that is plausible but it seems like a major stretch from what we know so far.

One of the more interesting aspects of the Snowden episode is that it has triggered the long-delayed advent of the Privacy and Civil Liberties Oversight Board established as an “independent agency” within the Executive Branch. The predecessor of this Board was the 1974 Privacy Protection Study Commission, which issued an elaborate report in 1977. The gist of the report was that the electronic age meant that the citizenry would rapidly lose control of their private data. The report pointed out that “government . . . has investigative and enforcement responsibilities which make the search and tracking capabilities that stem from applying computers and telecommunications to personal-data record keeping an attractive instrument . . . to which government can have easy access.” This was certainly a prescient warning from 40 years ago.

The Electronic Privacy Information Center has a treatise on “Why Privacy Matters,” and EPIC files many lawsuits to pursue privacy of digital information. I’m not so sure that privacy of information is really that important, except to the extent that I need to be able to protect my bank accounts from being raided. What makes the NSA dustup more disturbing is the feeling within government that it can act with impunity in the name of “national security.” If they can read my e-mails today, can they haul me off to a military brig without judicial approval tomorrow? Oh, wait, they did that already – kept several people locked up for years with total impunity.

Wayne McCormack is the E. W. Thode Professor of Law at the University of Utah S.J. Quinney College of Law. Professor McCormack teaches Constitutional Law, Counter-Terrorism, International Criminal Law, Torts, and Civil Procedure.