The breathtaking scope of the court order the Obama administration has obtained to collect all call records from Verizon Business Networks raises some huge questions:
1. Is the FISA court a total rubber stamp?
The Foreign Intelligence Surveillance court (FISA court) was set up to enable the government to fight espionage in the US while still complying with the constitutional command that prosecutors show some particular facts in order to get the approval of a neutral magistrate before searching Americans’ “persons, houses, papers or effects.”
The dragnet nature of this “search,” the fact that it is being conducted on an “ongoing basis,” (and, according to The Washington Post, the order has been renewed every 90 days since 2006), and the likelihood that there are other orders just as sweeping with other carriers–all show that the FISA court may not be doing its basic constitutional duty. News of this dragnet could lead some to declare the court broken.
2. Is 21st Century technology a poor fit with 18th Century law?
The government will argue that this is not eavesdropping but data mining, that a vast software filter is purring along catching only the most suspicious communications, as measured by metadata such as the number or place called, the duration of calls, or other specific markers.
This is cold comfort to most Americans, I suspect. The legal problem is that it is not clear whether a software program collecting metadata is covered by the same constitutional strictures as a federal agent. The government will argue that such programs are “dumb” until a human uses the data retrieved, at which point the Constitution really kicks in. Troubling, to say the least.
3. What justifies the warrant?
Finally–for legal geeks–the law (Chapter 50 of the US Code, Section 1861 (b)(2)(a)) says the government can obtain an order for “tangible things,” including “records,” from a FISA court if it shows a judge:
“[A] statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to—
(i) a foreign power or an agent of a foreign power;
(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or
(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation.”
The subsection (a)(2) referred to above states the following:
An investigation conducted under this section shall—
(A) be conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor order); and
(B) not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States.
What we need now is the government’s factual demonstration that Judge Vinson decided was compelling enough to issue such a sweeping warrant.