Thursday, June 6, 2013
Civil libertarian and Guardian journalist Glenn Greenwald published a bombshell this morning. Since April 2013, the US government has been collecting information from Verizon regarding all of its customers calls that were made within, from or to the United States.
The FISA Court approved the government's request and ordered Verizon to turn over the data. Although FISA Court orders are confidential, an anonymous person gave a copy of the Verizon order to Greenwald.
While the government does not have access to the content of the calls, the court order allows it to demand the phone numbers involved in the calls, the time and duration of the calls, the locations of the callers, and other technical information. Furthermore, the order applies to any calls placed in the US, even if they are strictly local and to international calls made to or from the US. The order also governs any calls, regardless of whether the government has a reasonable basis for believing that either of the callers has committed or is conspiring to commit a crime. For reasons stated below, this order violates the Constitution.
This news follows a Supreme Court ruling, made earlier this week, that also curtails civil liberties. On Monday, the Supreme Court held that the collection of DNA from a person arrested for committing a serious crime does not violate the Constitution. The Court "reasoned" that the collection of DNA is not physically intrusive, because it only involves swabbing the inside of an arrestee's cheek. The Court held that the need to "identify" persons in police custody provides a sufficient justification to collect DNA upon arrest.
The opinion sharply divided the Court. Justice Scalia wrote a powerful dissent. Justice Kennedy, predictably, wrote the majority opinion, which the sometimes-liberal Justice Breyer joined. Some "liberal" constitutionalists, such as Akhil Amar and Neil Katyal, have attempted to justify the Court's decision as a reasonable interpretation of the Fourth Amendment. Others, such as Barry Friedman, contend that the opinion is misguided. I agree with Friedman.
The news regarding the surveillance of Verizon calls helps to explain why the DNA ruling is utterly bankrupt. The Court defended its ruling on the grounds that collecting DNA is not physically intrusive; it only involves a quick swab of the cheek.
But collecting telephone records -- or even listening to calls -- does not intrude upon the object's physical space. In fact, these practices are even less intrusive. Undoubtedly, most Verizon describers did not realize that the government had been collecting details about their calls until today (assuming they even read about current events).
By contrast, the arrestee clearly knows that the government has intruded his or her physical space, albeit minimally, during DNA collection. So, using the Court's logic, the minimal physical intrusion of telephone surveillance could go towards justifying these searches in the absence of a warrant or a reason to believe the callers are actual or potential criminals.
The Court's focus on the physicality of DNA collection diminishes the scope of the Fourth Amendment. The Fourth Amendment does more than guard against bodily intrusion. It also secures the privacy of our "houses, papers, and effects."
I cannot imagine a legal justification for a blanket search of every Verizon call made in, from, or to the United States. Similarly, it is difficult to think of a valid reason to collect a DNA sample from every person arrested (not convicted) for a serious crime. It certainly cannot justify the subsequent use of this DNA in cases unrelated to the arrest. Yet, the Court validated this practice earlier this week.
DNA, like phone calls, contains an abundance of private information about us. The government cannot intrude upon this zone of privacy without reasonable justification. No legitimate reason exists to justify the generalized collection of DNA from arrestees. This same logic applies to the generalized collection of telephone data from every Verizon customer (excluding only calls made between two foreign locations). These practices make a mockery of the Fourth Amendment. For this reason, they are both unconstitutional.
Note: The Obama Administration has rushed to defend its collection of Verizon call data. The White House, sounding eerily similar to President Bush, says that monitoring the telephone data is "a critical tool in protecting the nation from terrorist threats." Apparently, we are all potentially terrorists. Al Gore, by contrast, described the practice as "obscenely outrageous."