NSA surveillance: illegal search!

The NSA surveillance program got a body blow yesterday.
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Edward Snowden (remember him? See also here and here) is a man without a country. But yesterday a federal judge might have vindicated him. That judge ruled a key part of the massive worldwide NSA surveillance program “likely unconstitutional.” That ruling, and the way some people talk about it, should at last provoke a debate on whether to be free or safe, or how to be free and safe.

The NSA surveillance ruling in detail

Marcos Colon writes for an obscure on-line journal called SC Magazine. The usual subscriber base comes from IT security people. He, not any mainstream journalist, broke the story. Alex Wilhelm at Tech Crunch also carried it and also carried this link to the ruling. (Klayman et al. v. Obama et al., Civil Action 13-0851 (RJL), in the US District Court for the District of Columbia.)

Larry Klayman is the head of Judicial Watch. He sued the government over the NSA surveillance program. At issue: the collection of telephone “metadata.” A metadatum is any piece of “given” information that tells you, not the content of a message or work of art or literature, but where to find it, who created it, how he created it, and so on. (From the Greek meta- after, and the Latin do, dare, dedi, datum to give) In the Klayman NSA surveillance case, telephone metadata are the records of who called whom, when, what time of day, and for how long.

The NSA surveillance program got a body blow yesterday.

The NSA’s Utah Data Center. Photo: S. Wilson, CC BY-SA 3.0 Unported License

Telephone companies always collect these metadata, to bill landline and now mobile subscribers for per-minute services. But as part of the NSA surveillance program, the government asks these companies to furnish these metadata to see whether or not any US citizen or lawful resident might have called, or taken a call from, a terrorist.

Judge Richard J. Leon did not definitively rule. Instead he made a temporary restraining order to stop this part of the NSA surveillance program. Specifically, Judge Leon found that Klayman and his co-plaintiffs:

  1. Have standing to challenge whether the NSA surveillance program and phone metadata gathering is constitutional,
  2. Are “substantially likely” to prevail on such a challenge, and
  3. Will suffer irreparable harm if this part of the NSA surveillance program does not stop at once.

He stayed that order to give the government a chance to appeal. Everyone knows the United States Supreme Court will hear this matter eventually.

One can easily feel the outrage this judge feels about the NSA surveillance program:

I cannot imagine a more “indiscriminate” and “arbitrary” invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.

But what about an earlier Supreme Court precedent that the government may collect telephone metadata any time it wishes? Judge Leon rejected that precedent as outdated and obsolete.

But by enjoining the government from gathering these metadata, does the judge invite a terrorist to plot away and do his worst? The judge noted scathingly that the government did not show one single case in which they caught a terrorist, or foiled his plot, by this part of the NSA surveillance program.

Edward Snowden crowed.

I acted on my belief that the NSA’s mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts.Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many.

People will talk

This morning, Judge Andrew Napolitano hailed the ruling. The NSA surveillance program, and the way the Foreign Intelligence Surveillance Court works, have troubled him from the start. He often quotes Benjamin Franklin:

Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.

And in that vein, Napolitano hopes the Supreme Court will affirm the ruling.

But several commentators, mainly from the second Bush administration, dispute Judge Napolitano. Judge Michael Mukasey insisted Judge Leon should look, not at potential abuses of the NSA surveillance authority, but any actual abuses. He argued no one has yet shown any. Karl Rove said something similar.

How to be free and safe.

Judge Leon made the most salient point: the government never showed a terrorist plot it foiled with these metadata. And how could they? Most people cannot conceive how inefficient searching those metadata can be. When you watch everything, you see nothing. That’s why no police officer, or security guard, has ever stopped a crime by watching a monitor. Instead they gather the tapes from various cameras that point at the scene of the crime, to gather evidence after the fact.

The full context of Benjamin Franklin’s “liberty or safety” remark, tells us how to be free and safe. Franklin wrote that while discussing how to protect frontier dwellers during the French-Indian War. His solution: let them arm themselves. And if they couldn’t afford it, Franklin proposed to spend money on buying them guns and ammo, instead of sending official soldiers to guard them and rule over them by martial law.

This “Franklin Doctrine” is the real answer to terrorism today: let the targets arm themselves. The NSA surveillance program assumes a helpless, defenseless, vulnerable public, full of soft targets. If every possible terrorist target were to harden him/her/itself, terrorist plots would be few and far between. And almost no terrorist could hope to get away alive, let alone clean.

But a target hard against terrorists is also hard against “internal security forces.” Maybe that’s why no modern administration has thought to follow Benjamin Franklin’s example. Maybe, with additive manufacturing (“three-dimensional printing”) to help us, we should.