Published by The Lawfare Institute
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Published by The Lawfare Institute
Ryan Lizza’s piece in this week’s New Yorker, “State of Deception,” is essential reading for those interested in surveillance and civil liberties. It is a gripping account of the history of the NSA telephone and Internet surveillance programs put in place after September 11. It traces these programs from their inception amid broad claims of wartime power during the first Bush Administration, explains the effort to put them under the FISA court in the second Bush Administration, and concludes with President Obama’s decision to ratify them and the fallout from the Snowden revelations. Unfortunately, the piece is marred by Lizza’s flawed description of surveillance law. He oversimplifies, and therefore distorts, the legal issues in a way that fits his narrative of Senator Wyden as the hero of his story. Perhaps the most important problem is that Lizza doesn’t understand the issue with FISA prior to September 11 that led to these programs. He explains that while the NSA “was legally vacuuming up just about any foreign communications it wanted,” it needed FISA court permission “when it targeted one side of a call or e-mail that involved someone in the United States . . . .” This is simply wrong. The NSA has been permitted for decades to collect international communications, including those with one end in the United States, as long as its target is foreign. The problem is that FISA distinguishes between collection that occurs over the air and collection that occurs from a wire, and between collection that occurs inside and outside the country. FISA has always permitted the NSA to get phone calls or e-mails by collecting data from a satellite or radio transmission with no need for a FISA court order. It can also collect these communications overseas. If it collects the very same communications on a wire (or cable, or computer server) inside the country, it needs a FISA order. There was a rationale for this when FISA was passed in 1978 – at that time, most international communications were carried by satellite or radio transmission. Congress understood this – and it wanted to keep NSA collection of these international communications outside of FISA. By 2001, technology had shifted decisively, and the large majority of international communications were being carried by wire – high-speed undersea fiber optic cables. To collect these communications, NSA found it had to get increasing numbers of FISA court orders – based on a Fourth Amendment standard of probable cause – even for foreign targets. The fact that FISA orders were required for collection directed at foreign targets before September 11 – but only for the kind of collection that took place on a wire inside the United States – was not really the result of a conscious policy choice by anyone. Indeed, it was for many a non-obvious interpretation of FISA and people on the outside were unaware of it. Lizza also fails to describe accurately the crucial legal distinction between content surveillance and collection of metadata. When Lizza discusses the origins of bulk metadata collection, he reports that the Justice Department advised prior to September 11 that “it was illegal for the N.S.A. to rummage through the phone records of Americans without probable cause.” Whatever legal issues Justice Department lawyers may have raised, they surely did not say this, since Smith v. Maryland has held exactly the opposite for decades. Lizza discusses Smith v. Maryland later in the piece, describing it as “contentious” (as if this makes it somehow shaky). While controversial, Smith v. Maryland is the case on the (lack of) Fourth Amendment protection for metadata, as any first year law student should know. Other mistakes and questionable assertions abound. The government, he implies, “innocuously” described section 215 of the Patriot Act (which is used to obtain telephony metadata) as the “library records” provision, and then protested it was not using the provision to obtain library records. In fact, section 215 was labeled this way by the Patriot Act’s opponents, including the ACLU and the American Library Association, to illustrate how broad the provision was and highlight its potential impact on First Amendment freedoms. Calling section 215 the “library records” provision was not the government’s idea and was certainly not meant to be “innocuous.” Perhaps most ironically, much of the substance of the reporting is based not on documents leaked by Snowden, but on FISA court opinions, memos and reports that have been declassified by the Director of National Intelligence, James Clapper, in the interest of transparency. These documents provide a wealth of information about the NSA programs, warts and all. Giving Clapper some credit for this would have been only fair, as well as important to understanding the story. Of course, this would have interfered with the piece’s portrayal of Clapper as the main villain in a story in which two successive Administrations kept these highly classified programs under wraps. The truth is more complex than heroes and villains. Lizza is certainly right to warn against the tendency he ascribes to members of the Senate Select Committee on Intelligence to treat top intelligence officials as “matinee idols” instead of asking skeptical questions. Unfortunately, it appears Lizza was dazzled by his own “matinee idol,” letting his zeal to tell this story as a vindication of Ron Wyden’s lonely quest seriously mar an otherwise fascinating piece.
Timothy H. Edgar defended privacy as an ACLU lawyer before going inside America’s growing surveillance state as an intelligence official in both the Bush and Obama administrations – a story he tells in Beyond Snowden: Privacy, Mass Surveillance and the Struggle to Reform the NSA. In 2013, Edgar left government to become a Senior Fellow at Brown University’s Watson Institute and helped put together Brown’s Executive Master in Cybersecurity. Edgar also serves on the advisory board of Virtru, an encryption software company. Edgar’s work has also appeared in the Wall Street Journal, the Guardian, Foreign Affairs, and Wired. Edgar is a graduate of Harvard Law School and Dartmouth College.
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