Recently, two seemingly opposite and “counter-balanced” decisions by US District Court Judges William Pauley III (New York) and Richard Leon (Washington, D.C.), on National Security Agency collection and archiving of mass private communications, were released The two opposing decisions likely leave most of the public highly confused. Is NSA collection and archiving of domestic citizen’s digital and communication data Constitutional or un-Constitutional? The answer is a whole lot less complex than most people think or that those in positions to know better wish to let on about.
Having a 25 year background in this specific technology arena, along with more than two decades of law and constitutional study of the issue, outside the obvious, it’s fairly easy to say that one judge has it wrong and the other right but for the wrong reasons. However, Judge Leon was a whole lot closer than Pauley. The activities of the NSA/DNI are not only un-constitutional but blatantly so.
The arguments made by most of the press, media and elected officials on both sides, usually side-step the simple and specific question. Instead, they get all axle-wrapped in the technology and the jargon of the agency, like “metadata” or “digital profile,” and in justifications that misdirect the key and obvious issue.
I found over my career that even the most complex technical and policy questions were either not understood, or purposefully misdirected, by those with an agenda. That seemed especially true if a clear, simple and understandable explanation could not be given for the problem. Such is the case with NSA domestic surveillance, politicians and the courts.
Throw out the technology involved, completely, as it’s irrelevant. The issue is one of functional equivalency. When the 4th Amendment was written the only thing the Founders knew was the Post Office, private foot and horse couriers for handling letter/parcel and dispatch communications. The purpose was to transport written or illustrated communications, other information and parcels between a sender(s) and a receiver(s). So let’s review the text of the 4th amendment to see how that works:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The part we care about here is the “…to be secure in their persons,….papers and effects,against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause…” (emphasis added)
Regardless of the technological sophistication we’ve obtained of late the functional purpose of all common carrier and Internet Service and Application Providers is the same now as it was 200+ years ago: To contractually and securely transport the information, letters, “effects” and/or parcels I provide to a service from senders to receivers and back. Digital devices and associated methods of communication of any kind fit well within the use of the term “papers and effects.”
When I hit that “send” key on any digital device to communicate information I should fully expect the same level of being “secure in (my) persons,….papers and effects,against unreasonable searches and seizures…” as they would expect 225 years ago. Why do you think they sealed all such communication and parcels with WAX SEALS? Hitting the send button, enter or return key for an email, internet search or download carries EXACTLY the same level of being secure in my papers and effects as the Founders expected with their wax seals. No less.
So you say, “How do we possibly defend against our enemies and the bad people, then?” The same way we did way back then, through legitimate probable cause warrant and reasonable search and seizure based on that probable cause and a specific, not blanket, warrant.
Except for certain presidents and politicians who came along, and for expedience sake, that standard was maintained more than violated. When it was violated it was seen and understood as a violation. Even during the great Wars no such blanket surveillance would have ever been tolerated, particularly once the general population found out.
“But that’s harder to do!” you say. Tough nuggies, baby! It requires discipline and hard work to do what’s necessary to maintain rule of law rather than of men. The Constitution and its stringent articles and clauses, as they knew then, was not written for convenience, expedience and efficiency of government. It was written to provide limited government under rule of law. STOP.
I can justify eliminating virtually every protection of listed rights, freedom and liberty in the constitution or human existence if convenience, expedience and efficiency are desired.
Two-hundred years ago I, or any of the Founders, could have made endless justifications to usurp the intent or nature of the Constitution and the 4th amendment just as is done today for expedience and “National Security” sake on so many fronts.
Suppose a engineering genius like Charles Babbage had invented a magical machine in the 1820s that enabled the Post Office to open and copy every letter and the names and addresses and dates of mailing for of every sender/receiver (gee, metadata?) while some war/conflict, social unrest or terrorist activity was underway? Do you think the population would have tolerated such a thing? Not on your life! So, don’t try to pretend to me that its constitutional today!
Let’s not beat around the bush any longer. There is no justification for not maintaining stringent 4th Amendment protections for every American citizen using any communication technology whatsoever, now or in the future, for as far as the eye and mind can see. None. There is no blanket warrant power and no level of national emergency that demands or requires it. Only the failure of judges, law enforcement and elected officials to do the job with the Oath and discipline they were appointed/hired/elected to perform. If they don’t they must be removed until those that will exercise the discipline do the job correctly.
It’s wrong when the Left does it and it’s wrong when the Right does it. Passage of time and technology has no meaning here to the principles involved. Whatever any judge, officer, President or other politician says to the contrary they are most certainly wrong now and will be then as they have been every time in the past.
You want the info? Be prepared to justify the SPECIFIC probable cause and the Warrant. Otherwise, “DON’T TOUCH MY INFO, BRO!”
Jeff Wright is a former Cryptologic Tech with the Naval Security Group and Technical Liaison to the National Security Agency, a defense systems Engineering Manager and Consulting Chief Systems Engineer to Bell Laboratories, with more than 25 years in Defense, Intelligence, Commercial and Industrial Network systems engineering experience. He is also author of “The Citizen’s Last Stand: Are YOU Ready?” (published Dec., 2012) that discusses this question in substantial detail and others related to the Security and Surveillance State.