The United States Foreign Intelligence Surveillance Court in Washington, D.C. in a top secret court order ordered Verizon to produce to the National Security Agency (NSA) “all call detail records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.”
Since we’re Verizon users, this order means that the NSA knows who we called, where we called them from, and for how long. The NSA even knows that we’ve talked to each other.
The NSA’s actions seriously infringe First Amendment rights. It chills freedom of speech, perhaps dissuading someone from calling a whistleblower hotline, since such calls will no longer be anonymous. It chills freedom of association. If a person makes a call to participate in a group at a church, mosque, or synagogue—or calls the Tea Party or the ACLU for information—that association might improperly be used against him.
The NSA action also violates the Fourth Amendment since it is an unreasonable search. People’s phone records are being collected with absolutely no suspicion that they’ve committed a crime. The government argues that the search does not violate Fourth Amendment protections because phone records do not contain substantive content. But such an argument is not consistent with modern Fourth Amendment jurisprudence. Just last year, the Supreme Court decided in U.S. v. Jones that the collection of location information implicates the Fourth Amendment. Justice Sotomayor said location information “generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” If you know where we’ve made our calls from, you would know whether we were meeting with a competitor to our current employer, attending an Occupy rally, going to an AIDS clinic or abortion clinic, or other very private information. Who we’ve called is likewise sensitive and private.
Even the rights-invading Patriot Act does not appear to allow such a sweeping invasion of citizens’ rights. Under 50 U.S.C. § 1861(b)(2) of the Act, the information sought must be “relevant to an authorized investigation.” This sweeping surveillance is not an investigation, but rather a fishing expedition.
Today, the ACLU filed suit to challenge the NSA’s actions on Constitutional grounds. Turns out, the ACLU uses Verizon, too. You can read the complaint here.
Senators Ron Wyden (D-Oregon) and Mark Udal (D-Colorado) have also spoken out against the government’s use of the Patriot Act. Both senators have served on the intelligence committee and were briefed on the NSA’s activities. Wyden has said “I believe that when more of my colleagues and the American public come to understand how the Patriot Act has actually been interpreted in secret, they will insist on significant reforms.”
Lori is a law professor and the author of I KNOW WHO YOU ARE AND I SAW WHAT YOU DID: SOCIAL NETWORKS AND THE DEATH OF PRIVACY.
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