The Rights of the People (42 page)

Mike McConnell, the director of national intelligence, stood at a map and demonstrated the problem for Lawrence Wright of
The New Yorker:

So, the White House proposed revising FISA to legalize its own evasion—and essentially won. First it got the Protect America Act to remove protections by sanctioning the warrantless surveillance from August 2007 to February 2008.
⁸⁷
Then the shock and outrage that had erupted in Congress over the program evaporated in the hot political summer of 2008, when most candidates (Barack Obama included) were unwilling to be demonized as soft on terrorism, and few Americans agitated on behalf of personal privacy. The Democratic-led Congress severely undermined FISA by passing amendments containing the thinnest possible oversight by the FISA court. Bush was understandably delighted, declaring at the signing ceremony, “The bill will allow our intelligence professionals to quickly and effectively monitor the communications of terrorists abroad while respecting the liberties of Americans here at home.”
⁸⁸
The law had no requirement that the monitoring be limited to terrorists, however, and Americans at home had a good deal to worry about.

Public discussion was fixated on a provision immunizing the telecommunications companies retroactively from lawsuits for violating customers’ privacy. The firms’ only legal motive to guard personal information is now gone. But far more significant is the virtual free hand given the government to collect and monitor communications that appear international (but might be domestic) without individualized warrants meeting any of the Fourth Amendment’s key requirements. As long as the targets are “reasonably believed” to be outside the country and not “United
States persons” (American citizens and “aliens lawfully admitted for permanent residence”), the FISA court is required to approve eavesdropping applications containing minimal information. No particular individuals, groups, phone numbers, e-mail addresses, or other limiting details have to be specified, and no probable cause has to be shown that the targets are foreign agents, criminal suspects, or associates of terrorist organizations. The rationale for monitoring is broad and vague, merely “to acquire foreign intelligence information,” which can include not just classified military matters but anything that might interest journalists, scholars, or human rights advocates about a country’s political, economic, legal, and cultural issues.

Taken together, all of the loose requirements allow “mass acquisition orders” that can sweep up communications, albeit inadvertently, from Americans inside and outside the United States. The law says only that the government “may not intentionally target” such parties. If it accidentally does so, or if the parties on U.S. soil are not the true targets but only ancillary to the focus of the surveillance, no more demanding FISA warrant is required. And the FISA court has a role only at the outset, with no continuing oversight to make sure the surveillance ceases, as the law requires, if a U.S. person or anyone inside the country turns up in the communications.

The court’s power is further undermined by a provision allowing emergency eavesdropping without a court order for up to seven days before going to the judges; if it’s denied on procedural or even constitutional grounds, or in the unlikely event that a telecom company appeals, the surveillance “may continue” until the appeal is exhausted, which could take years. (The target does not know that he’s being monitored, of course, so has no opportunity to file a challenge.) Nor does the law authorize the court to enforce the statute’s so-called minimization procedures, which are vague restrictions on the dissemination of information and could lead to the storage of vast databases for later use against law-abiding people whose communications happen to be swept up in the net.
⁸⁹

Indeed, it’s hard to see how any of the mild limitations are truly enforceable, given that nobody can seriously watch what the NSA and other agencies are doing. Congress has given them the power to snoop pretty much as they see fit. The five inspectors general concluded that the 2008 law “gave the government even broader authority to intercept international communications” than the “Terrorist Surveillance Program” that Bush had secretly launched in 2001.
⁹⁰

If lawmakers had intended to be satirical, they couldn’t have done
better than the provision that the surveillance “shall be conducted in a manner consistent with the Fourth Amendment to the Constitution of the United States.”
⁹¹
There is practically nothing in the statute consistent with the Fourth Amendment’s requirements for probable cause, particularity, and individualized warrants.

Secret government behavior is like black ice: You can’t see it, and it’s hard to get enough traction to fight it. It’s impossible to find anyone who knows he’s being monitored. Therefore, while a group of organizations, scholars, and writers who communicate frequently overseas won in federal district court against the warrantless surveillance program before it was codified in law,
⁹²
a panel of the Sixth Circuit ruled two to one that they had no standing to sue, because they couldn’t prove that they were targets of eavesdropping.
⁹³
You don’t get to file a lawsuit unless you’ve been harmed, and if the government prevents you from knowing that you’ve been injured, too bad.

Undaunted, however, a collection of lawyers, writers, and human rights organizations represented by the ACLU challenged the 2008 FISA amendment, arguing that they could not effectively gather information from persecuted dissidents, abused women, tortured inmates, and others overseas who would assume and fear that their e-mails were being read, that their phone calls were being heard, and that they could suffer as a result. Human Rights Watch, Amnesty International, and others predicted that the law would require employees “to travel long distances to collect information … and in some circumstances to forgo particularly sensitive communications altogether.” A federal judge dismissed it on the same grounds—no standing, since they couldn’t show that they’d been under surveillance. But their suit was reinstated on appeal.
⁹⁴

At least Bush found something to laugh about. “Half the time they say I’m isolated and don’t listen,” he remarked. “Then when I do listen, they say I need a warrant.”
⁹⁵

A bumper sticker countered:

N
OBODY KNOWS WHERE
we are. Our sailboat is anchored near the shore of a Maine island, in a quiet cove disconnected from the technological world. Our cell phones pick up no signal here, so their location cannot be traced. I can write on this computer, but the Internet is inaccessible, so I can’t be monitored sending e-mails or visiting Web sites. Our ATM and credit cards are useless in this pristine place, so they generate no “transactional data,” in the jargon of police intelligence. No security cameras survey this rough coast of granite and spruce. My wife, Debby, and I are happily invisible.

We aren’t trying to hide, just basking in our natural privacy. Here, we are the sole owners of our seclusion and our freedom, setting our courses and choosing our harbors subject only to our whim and the wind. Nobody can watch us.

As pure and genuine as this feels, it is uncommon to the twenty-first century. We have vanished from the screen, leaving no electronic trails—but only in the present and just for a while. Our past has been intricately recorded, and the moment we reenter the ordinary world—the moment we make a call, send an e-mail, pay a bill, withdraw some cash, book a plane ticket, drive through a toll booth, enter a hotel room with a key card, even walk into certain buildings—we are back in view, and the government can see us if it wishes.

The Supreme Court seems to think that we have a choice about this reentry, that living a normal life is optional, that whenever we punch in a phone number or send a check or use a piece of plastic in our wallets, we give bits of personal data away willingly, not by necessity. In doing so, by the justices’ reasoning, we voluntarily relinquish our Fourth Amendment right to keep information about ourselves secure. The contents of domestic communications by e-mail and phone still require warrants to
obtain, but the addressees and subject lines of e-mails, and the numbers we call, are easily accessible without judicial oversight. In other words, the Court has ruled that phoning, traveling, banking, and other everyday activities are purely elective, for which we freely discard a constitutional protection.

The Court has always been slow to catch up with technology. Not until 1967, more than half a century after the first transcontinental telephone line was strung, did the justices protect phone conversations by finding warrantless wiretaps unconstitutional. Their ruling reversed an antediluvian opinion that had stood since 1928, when the Court decided in
Olmstead v. United States
that it was OK for agents to tap bootleggers’ phones without warrants, because their voices were transmitted outdoors where no search or seizure could occur, and therefore no violation of the Fourth Amendment could be committed. “The language of the amendment cannot be extended and expanded to include telephone wires, reaching to the whole world from the defendant’s house or office,” the majority wrote. “The intervening wires are not part of his house or office, any more than are the highways along which they are stretched.”
¹
This was known as the trespass theory of the Fourth Amendment, which saw no infringement unless agents entered private property uninvited.

That old-fashioned view wasn’t erased until
Katz v. United States
in 1967, when the Court devised a new test to determine the Fourth Amendment’s jurisdiction—“first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ”
²

Our expectation of privacy has now plummeted. Especially since September 11, 2001, we have submitted our personal space to routine invasions. We have grown so numb to the indignities of airport searches that we shamelessly whip off our belts and jackets and shoes, allow strangers to pat our bodies and paw through our toiletries, flash picture IDs at the least provocation, and even parade through a growing number of scanners that render us naked on-screen. Protests by angry travelers have fizzled; helplessness prevails. “I’m thinking of starting my own airline, which would be called: Naked Air,” the columnist Thomas L. Friedman wrote in December 2001. “Its motto would be: ‘Everybody flies naked and nobody worries.’ Or ‘Naked Air—where the only thing you wear is a seat belt.’ ”
³

As a real-life alternative, more than 260,000 travelers eagerly acquiesced to government background checks, fingerprinting, and iris scans (and paid about $200 a year) just to get into express lanes and save a
few minutes at airport security with the Clear card from Verified Identity Pass—before the company suddenly went out of business.
⁴

Where the Fourth Amendment still applies—as in personal searches—authorities extract preemptive consent in exchange for entry, not only at airports and courthouses but even on Maine State ferries, which have been adorned with signs reading, “Boarding This Vessel Is Deemed Valid Consent to Screening or Inspection” and “All Persons and Vehicles Aboard This Vessel Are Subject to Electronic Monitoring/Surveillance.” Searches are not actually done on the ferries, but closed-circuit television cameras, known as CCTV, sweep the little island terminals, which are now garishly lit at night like shopping malls before Christmas. On board, cameras give the captain and crew in the wheelhouse views of the passenger cabins below—a bizarre convenience one winter’s day on the boat between Swan’s Island and Bass Harbor. With the heat in a cabin too low, shivering high school students held a handwritten complaint up to the camera. The engineer soon appeared; he couldn’t read the writing on the screen and wondered what it said. We’re cold! the kids declared, and so they got some warmth. Being watched is sometimes useful.

Americans (and not only Americans, of course) are induced constantly to expose themselves to monitoring. They welcome “cookies” into their computers for the convenience of being recognized and catalogued by marketers, they reveal their mothers’ maiden names and their Social Security numbers to anonymous customer-service agents in Bangalore, and they seem entirely comfortable in the ubiquitous lenses of camera phones and security cameras. In a kind of mass exhibitionism, many put intimate videos and information on YouTube and Facebook and MySpace for the world to see, place webcams in their bedrooms for streaming online, and tweet constantly on Twitter about the mundane things they’re doing.

At some level, the violation of privacy is a thrill—gee, they know what I want to buy and eat and see and read! Outside attention seems akin to fame, and it appeals to a lot of people, whether the noble cause is consumerism or national security. After all, if they’re watching a good guy like me, they’re surely watching the bad guys, too. I
feel
safer. “To keep our national defense up,” wrote William Safire, “we have let our personal defenses down.”

So irresistible are banking and shopping online, so enticing is the ease of e-mail, that hardly anyone now is careful to keep personal and sensitive information out of the digital universe, where it can be hacked and
read and saved indefinitely. Incautious embezzlers, fraudsters, and inside traders send and retain self-incriminating e-mails, oblivious to their ready accessibility by government agencies trolling for evidence.