I have found, when it comes to matters of government power and conduct regarding intelligence, surveillance, and the like, that it is best not to firmly cement my opinion until I hear what Andrew C. McCarthy (the prosecutor from New York who put away the mastermind of the 1993 World Trade Center bombing) has to say. The Verizon-court-order-phone-record kerfuffle is no exception.
The Washington Post publishes a wildly exaggerated report this morning about the government’s collection of telephone records for national security purposes. Mind you, I said collection of telephone records, not wiretapping of telephone conversations, a critical distinction.
I would add a distinction lost on many. McCarthy goes on to explain just how important the difference is.
Telephone record information (e.g., the numbers dialed and duration of calls) is not and has never been protected by the Fourth Amendment. The Supreme Court held as much in its 1979 Smith v. Maryland decision.
Wait, what? But there was no PATRIOT Act in 1979! How could this be?!?!
Hang on, though. It gets better…
Unlike the content of your communications, you have no expectation of privacy in your telephone activity records. If you think about it for a second, you know you don’t. If there were a mistake on your phone bill – for example, if you were charged for a long-distance call you didn’t make — you would expect to be able to call your phone company and have the problem addressed. That is because you understand that, when you make a call, this information is not secret: your phone company keeps records of whom you called and how long the call lasted. A phone record is, by nature, a record of information shared with third-parties.
Or, to put it another way, the feds basically asked Verizon for everyone’s phone bill – which, again, is a power they’ve had since the 1970s. In fact, according to McCarthy, using PATRIOT to get this data is harder than not using it.
With grand jury subpoenas, there is essentially no court supervision. When I was a prosecutor and I wanted information, I reached into my desk, pulled out a subpoena, wrote what I wanted on it, and sent an FBI agent to go get it. I did not need to go to a court. A judge would get involved only if the person, business, or institution served with the subpoena tried to get the subpoena quashed – which was very rare, especially in the case of third-party records that do not implicate constitutional privacy concerns.
By contrast, Section 215 of the Patriot Act (which I wrote in support of when it was reauthorized a few years back) requires the government to go to the FISA court for permission to get business records, including phone records. It is true that the court’s role is largely ministerial – again, because there is no expectation of privacy and no Fourth Amendment protection, there is no need for the judge to make a probable cause finding. But that does not mean making the government go to the judge is inconsequential. The representations the government makes about the need for the records must be true – if they are later found to be false, there will be hell to pay.
Moreover, requiring the government to go to a FISA judge makes it far more straightforward for Congress to conduct oversight to ensure that the Justice Department is not abusing its authority. As a practical matter, there is no way Congress could efficiently review how thousands of prosecutors conducting tens of thousands of investigations across the country are using their ordinary (but capacious) law-enforcement power in issuing countless subpoenas.
So, no need to worry, right?
Not so fast.
As McCarthy himself acknowledges, “All information collecting can be abused” (emphasis in original again). Just because the government has been able to demand and get phone bill info since 1979 doesn’t mean it should, or that, in this case, asking for everyone‘s was particularly wise.
To some extent, it reminded me of a Washington Post story on how the federal intelligence apparatus grew exponentially after 9/11. Perhaps the WaPo was trying to scare everyone about how many snoopers were out there (and, to be fair, it was disconcerting), but I also noticed massive inefficiencies, bureaucratic battles, and unending reams of data left without any analysis because the intelligence folks bit off more than they could chew.
In fact, what we’re seeing here is yet another example of how the president’s determination to avoid admitting the nation is at war with Wahhabists, Ba’athists, and Khomeinists is making it harder to limit executive action and power: it has made it politically impossible for the president to narrow searches like this. So the agencies under his control have to ask for far more than is necessary or sensible, which leads to frightened Americans, angry politicians, and an avalanche of data that turns usable intelligence into needles buried in haystacks.
Intrusive yet competent action can create interesting arguments – which can go one way or the other depending upon the situation. Intrusive and incompetent action, on the other hand, should be roundly criticized, and never repeated. The Verizon record order clearly looks like the latter from here.
Cross-posted to Bearing Drift