Subsequently The Washington Post released a
classified slide show about the PRISM program which identified major
participant companies such as Microsoft, Yahoo, Google, Facebook, AOL, Skype,
YouTube, and Apple.
The Fourth Amendment to the U.S. Constitution
guarantees that Americans have a right to be secure from unreasonable searches
and seizures by the government absent probable cause. Keep in mind that, even
in an era where we choose to share much of our lives through technology, this
constitutional protection has not changed.
The most shocking aspect of the PRISM program is
that the government essentially asserts Americans have no expectation or constitutionally
protected interest in the privacy of the information about their communications
or activities (metadata) related to their interaction with businesses.
The government bases its perspective on two Supreme
Court cases from the 1970s: United States v. Miller and Smith v. Maryland. Both
cases hail from a time when technology played a radically different role than
it does today, and both reached conclusions that simply reject modern privacy
expectations.
According to the Director of National Intelligence,
James Clapper, PRISM is “an internal government computer system used to
facilitate the government’s … collection of foreign intelligence information”
as authorized by Section 702 of the Foreign Intelligence Surveillance Act
(FISA) (50 U.S.C. § 1881a).
Curiously, the authorizing code section also
specifically states that the government “may not intentionally target any
person known at the time of acquisition to be located in the United States.” It
also requires “targeting procedures” “reasonably designed to prevent the
intentional acquisition of any communication as to which the sender and all
intended recipients are known at the time of the acquisition to be located in
the United States.”
Clearly, as evidenced by the Verizon order, the
government intentionally obtained information pertaining to individuals in the
United States communicating domestically. Clapper argues that the vast majority
of the millions of people whose information was compelled were not targets. He
further assured Americans that the program was administered in a fashion
designed to “minimize the acquisition, retention and dissemination of
incidentally acquired information about U.S. persons.”
While Clapper stated that the PRISM program was
authorized by Section 702 of FISA, the classified Verizon order cited the
information as compelled by 5 U.S.C. § 1861. That section of the code requires
that the government demonstrate “reasonable grounds to believe that the
tangible things sought are relevant to an authorized investigation.” Clearly,
the metadata related to your phone calls to your mother, doctor or pastor has
nothing to do with foreign surveillance.
Prior to the leak, many Americans who may have been
uneasily supportive of the Protect America Act and the 2008 FISA Amendments
might have thought that “incidentally acquired” described the information of an
unwitting individual communicating with a probable terrorist. The government
unilaterally filtering through such a vast amount of information from the most
significant data carriers in the world to “target” a proportionally miniscule
number of terrorists seems on its face to be both overreaching and ripe for
potential abuse.
If the government has a target or targets related to
foreign surveillance, they must narrowly tailor the request for that
information, adopt stringent minimization protocols and discard unused
information. If the government has no terrorist targets, then FISA does not and
should not give them permission to begin sifting through trillions of pieces of
domestic information.
Most Americans reasonably expect the details of
their location (especially on private property), who they are communicating
with and when they do it to remain confidential between them and their
respective service providers. Every one of the companies participating in PRISM
carries a privacy policy that specifically assures users and customers of the
limited range of access to their information. At the same time, it also makes
sense to keep those records to aid law enforcement in operations where probable
cause definitively exists.
With the Department of Justice (DOJ) spying on
reporters and the Internal Revenue Service targeting political groups, bald
assertions that “targeting” will not occur fall particularly flat. To make
matters worse, the FISC, without any adversarial arguments to the government’s
requests for information, is a rubber stamp for federal information requests.
According to a DOJ report, the FISC “did not deny, in whole or in part” any of
the 212 applications for business records during calendar year 2012.
While national security remains a high federal
priority, America must ensure that its laws are able to keep up with technology
and the privacy expectations of its citizens. The government’s intentions of
keeping us safe from terror are noble and necessary, but the means to that end
must be bounded by the Constitution and as transparent as possible to those not
under criminal scrutiny.
About the author: Cameron Smith is policy director
and general counsel for the Alabama Policy Institute an independent, non-profit
research and education organization dedicated to the preservation of free
markets, limited government and strong families. He may be reached at
camerons[at]alabamapolicy.org or on Twitter @DCameronSmith.
This article was published by the Alabama Policy
Institute.
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