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Libertarians of La Mancha

Objections to NSA surveillance are too often ­fanciful.

Jul 8, 2013, Vol. 18, No. 41 • By MARIO LOYOLA and RICHARD A. EPSTEIN
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The more intrusive of the two programs is the simpler to dispose. PRISM is just like a phone wiretap except on Internet communications. Like a wiretap, the target is always a specific suspect. But because PRISM’s targets are foreigners outside the United States and do not enjoy the protection of the Fourth Amendment’s warrant requirements, FISA allows the surveillance to be conducted pursuant to a joint certification of the attorney general and director of national intelligence made to the FISA court on a yearly basis, subject to its approval. That system allows the U.S. government to target specific persons wherever they go (outside the United States). The program should be noncontroversial by now; this is precisely the sort of surveillance that lay at the heart of the FISA Reform Act of 2008, which Congress exhaustively debated for several years. All the objections being raised against it now were raised then, and were either accommodated or rejected with good reason. The program is responsible for foiling about 40 of the 50 terrorist plots which the administration recently disclosed to Congress in classified briefings.

Far more controversy has swirled around the less intrusive of the two programs. Section 215 of the Patriot Act (501 of FISA) allows the government to collect large data sets from phone companies on a daily basis. The data include numbers dialed from, numbers dialed to, length of call, and time of call. The information does not include identity, location, or content.

Critics have assailed the program as a sweeping dragnet, pointing out, for example, that it’s easy to identify the owner of a phone number. This criticism misunderstands the nature of the program. It is meant principally to preserve phone record data that the phone companies themselves preserve for long periods of time, and as to which the Supreme Court has ruled there is no expectation of privacy under the Fourth Amendment. The program makes it easier for the government to manipulate and access data that it is already entitled to see without obtaining warrants under various provisions of domestic criminal law.

Under the FISA program, the government can only look up the identity of the person associated with a particular phone number, or otherwise access the data, if it can establish “reasonable articulable suspicion” that the person is involved with some sort of terrorist organization. The suspicion can’t be based on speech protected by the First Amendment, such as “I hate Americans.” Any data collected are subject to minimization.

Rep. Jim Sensenbrenner, one of the principal authors of the Patriot Act, got a lot of attention recently when he professed shock at the sweep of the program. He claims it goes far beyond the intended scope of Section 215, which is limited to “an investigation to protect against international terrorism or clandestine intelligence activities.” But Congress has been briefed on the scope of this program for years, and during that time the 11 judges of the FISA court, sitting individually on a rotating basis, have approved the program every 90 days.

Many libertarian critics have argued that the NSA surveillance violates the Fourth Amendment’s prohibition on unreasonable search and seizure. But in fact FISA follows the general progression of safeguards developed elsewhere under Fourth Amendment law. General surveillance can be engaged in routinely without a warrant. Efforts to examine particular data require a showing of probable cause, which demands some clearly articulated reasons for singling out any given person for further scrutiny. Under certain “exigent circumstances,” officials can act without a warrant for a period of days, subject to FISA court review. But when targeting U.S. persons anywhere in the world, or anyone inside the United States, whether here legally or not, the government must seek a specific warrant of the FISA court.

The Cato Institute’s Julian Sanchez points to the recent case of U.S. v. Jones, in which the Supreme Court rejected the long-term warrantless tracking of a single vehicle with a GPS device, because, as Justice Samuel Alito wrote in concurrence, law enforcement officers shouldn’t be able to “secretly monitor and catalogue every single movement of an individual’s car for a very long period.” Sanchez argues that such monitoring is even more impermissible when conducted against everybody. He makes the novel case that in the Framers’ understanding, “ ‘unreasonableness’ was specifically associated with the absence of particularity—of the kind exhibited by, for instance, an authority to indiscriminately collect all Americans’ phone records.”

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