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“Here’s looking at You, Kid” Government Surveillance and the Constitution

July 12, 2013
By Larry Cary, Esq.*

Whatever you think about Edward Snowden leaking top secret information about the National Security Agency’s domestic surveillance program, if Snowden is telling the truth your right to privacy and the quality of our democracy is being eroded.  According to Snowden, an infrastructure analyst employed by Booz Allen Hamilton, a private corporation under contract to provide services to the NSA, the government “specifically targets the communications of everyone.”  It collects information about your telephone calls and internet use, including your emails and the websites you visit.

According to Snowden, “Even if you're not doing anything wrong, you're being watched and recorded. The storage capability of these systems increases every year, consistently, by orders of magnitude, to where it's getting to the point where you don't have to have done anything wrong, you simply have to eventually fall under suspicion from somebody, even by a wrong call, and then they can use this system to go back in time and scrutinize every decision you've ever made, every friend you've ever discussed something with, and attack you on that basis, to sort of derive suspicion from an innocent life and paint anyone in the context of a wrongdoer.”

Lest we think the NSA is the only one with a surveillance program targeting everyone, the New York Times recently revealed that the U.S. Postal Service is now photographing the exterior of every piece of mail, that is to say, the “meta data” for the snail mail you and I send and receive is being stored for future review by the government.  (Remarkably, while the Postal Service is contemplating eliminating Saturday delivery in order to save money, we have the resources to photograph, index and store 160 billion images each year.)

This mass surveillance of the entire population appears to fly in the face of the Constitutional protection of our right to privacy.  In Griswold v. Connecticut, a 1965 case dealing with the state’s right to interfere with a personal decision to use birth control, the Supreme Court describes “various” Amendments in the Bill of Rights as creating “zones of privacy.”  Writing for the Court, Justice William O. Douglas said the First Amendment protects not only the “right of freedom of speech and press … but [also] the right to distribute, the right to receive, [and] the right to read.” And, the First Amendment’s protection of the right to peacefully assemble “is more than the right to attend meetings” for it does not simply protect political association, but also “pertain[s] to the social, legal and economic” relationships every person has.

According to Justice Douglas, “The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.”  The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment.  The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.””

In Johnson v. United States, a case decided in 1948, the Supreme Court described the Fourth Amendment as protecting our “freedom from surveillance.”  Under the Fourth Amendment, “[w]hen the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.”

By contrast, Snowden is neither a judicial officer nor a policeman, and as an employee of Booz Allen Hamilton it cannot be said that he is even a “government enforcement agent.” But even so, he says that while “sitting at my desk, [I] certainly had the authorities to wiretap anyone, from you or your accountant, to a federal judge, to even the President …." The sheer scale of searching everyone’s telephone calls and internet communications also calls into question whether the government has “probable cause” to engage in these surveillance programs. The Fourth Amendment explicitly requires that a search warrant be obtained from a court, only 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 Oxford Companion to American Law defines probable cause as "information sufficient to warrant a prudent person's belief that … evidence of a crime or contraband would be found in a search.” This is frequently described in the law as requiring the existence of an “individualized suspicion” that evidence will be found of a crime when the person is searched.  Can it really be argued with a straight face that the government has “probable cause” to believe that everyone’s phone calls and internet communication contains evidence of a crime? I think not.

Unfortunately, these issues are dealt with in secret by an 11 member special Foreign Intelligence Surveillance Court that was originally founded in 1978 to prevent wiretapping abuses by the government.  In 2007 its powers were expanded by Congress to provide judicial oversight for all intelligence gathering.  This is a court unlike any other.  Its members are not appointed by Congress but by Chief Justice John Roberts who selects them from among the rest of the federal judiciary.  Unlike the rest of the federal judiciary, the judges don’t sit for life but for seven year terms.
It appears that Chief Justice Roberts’ selection criteria leans towards the Republican.  Only 1 judge currently serving on the secret court was nominated to the bench by a Democratic President – the other 10 are Republican nominees.  Notably, like Chief Justice Roberts himself, the current Chief Judge of the Foreign Intelligence Surveillance Court is a guest speaker at Federalist Society gatherings.

But more disturbing is the fact that this court operates in total secrecy.  It almost always only hears from the government – no defense counsel is heard on behalf of the people – its decisions are secret, and there is rarely an appeal.  In fact, the New York Times has described this court as a parallel Supreme Court.

According to anonymous sources, the Times recently reported that this secret court has carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures based on the “special needs” doctrine approved by the Supreme Court in Skinner v. Railway Labor Executives’ Association. In this 1989 decision warrantless drug and alcohol testing of railway employees involved in serious train accidents or other incidents where someone was killed passed Constitutional muster despite being covered by the Fourth Amendment. The Court said that the search was not “unreasonable” because there were both (1) “special needs, beyond the normal need for law enforcement, [which] make the warrant and probable-cause requirement impracticable” and (2) the expectation of privacy at issue in this case was greatly diminished under the specific circumstances.

In Railway Labor Executives’ Association, the Court found that there was a special need to promote safety due to the danger of intoxicated employees operating locomotives.  It also found that obtaining a warrant was impractical because the evidence of impairment could dissipate from the employee’s blood during the time it took to get the warrant.  But more importantly to the Court’s holding in the case was its finding that railway employees have a “diminished expectation of privacy … relating to [their] physical condition” owing to the fact that as employees they are required to take annual physicals to show that they are fit for duty. For these specific reasons the government’s right to invade their privacy without a warrant trumped the employees’ right to privacy.

It is a far cry from justifying drug testing safety sensitive employees to justifying the wholesale surveillance and seizure of every person’s telephone and internet records.  In the first place, unlike a prospective employee that doesn’t have to take the job, unless one eschews use of all telephones, the internet and the post office, a person does not have the ability to prevent the government’s program from scooping up his information.  In the second place, the interest in being able to freely share with others what one thinks – and to be free from the shadow of governmental surveillance and the government’s permanent storage of everything we say and to whom we say it, is the very corner stone of a democratic and free society.

The terrible events of 9/11 and our need to enhance our security in the face of ongoing threats of terrorism do justify governmental action, but not the wholesale stripping of our Constitutional right to privacy.  As Justice Thurgood Marshall said in his dissent to Railway Labor Executives’ Association: “History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure.  The World War II relocation-camp cases, and the Red scare and McCarthy-era internal subversion cases, are only the most extreme reminders that when we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it.”

It is sobering to think that unlike the McCarty-era where only relatively few lives were unfairly ruined when people were suspected of being a communist or communist sympathizer and subjected to governmental surveillance, all of us today are now deemed suspect. Many of us will curtail what they say to others for fear that someday the government will review all that they have said and use it validly or invalidly to determine their guilt or innocence.  This erodes the quality of our democracy because a truly free people cannot be worrying constantly about the government spying on them.  While some will view these concerns as remote and merely the product of an overwrought imagination, anyone old enough to remember President Richard Nixon’s enemies list knows otherwise.  

If the Supreme Court should ever find itself in a position to review the constitutionality of what the NSA is doing, let us hope that Justice Anthony Kennedy does not believe his decision in Railway Labor Executives’ Association to be a precedent for deciding the case.  He is often the swing vote between the so-called “liberal” and “conservative” Justices on the Court and how he views the matter will likely determine the outcome of the review. In the meantime, only say good things about the government over the telephone and in emails; don’t visit any websites that could ever be viewed by anyone as problematic, and whatever else you do, don’t send birthday cards or Christmas cards next December unless you want the government to know your list of intimates.

*Larry Cary is a partner in the New York City law firm of Cary Kane LLP and has represented unions for 30 years.

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