Privacy SOS

Here’s our chance: take action to stop NSA’s mass associational surveillance

We have a golden opportunity today to throw a wrench into one of the most privacy-violative and totalitarian of the NSA’s many surveillance programs. Representatives Justin Amash (R-MI) and John Conyers (D-MI) have introduced an amendment that would ban the NSA’s routine collection of our internet, phone, financial and other private records through Section 215 of the misnamed USA Patriot Act. 

Stephen Bradbury is one of the people responsible for the NSA’s outrageous metadata collection program — and he's feeling the heat. Seemingly worried that Americans may hold their government accountable and stop the suspicionless surveillance he helped to usher into practice, Bradbury wrote in an Op-Ed published in today’s Washington Post:

Debate over the National Security Agency’s collection of telephone metadata is taking a dangerous turn. There’s a risk that Congress or the White House will impose ill-considered constraints on the NSA that would compromise our ability to protect the United States against the next 9/11.

The metadata acquired in this program doesn’t reveal the content of anyone’s phone calls — just the records of which numbers have dialed which numbers and when. This is transactional information that phone companies compile for billing purposes, and the Fourth Amendment does not require a warrant supported by probable cause to obtain these records.

That’s the view of a man who, in the Post’s words, “led the [DOJ’s] legal effort to obtain initial approval from the Foreign Intelligence Surveillance Act court for the telephone metadata order” back in 2006 when the program was first introduced. 

Here’s another take, by law professors Jennifer Granick and Christopher Sprigman, published in the New York Times in late June:

The Fourth Amendment obliges the government to demonstrate probable cause before conducting invasive surveillance. There is simply no precedent under the Constitution for the government’s seizing such vast amounts of revealing data on innocent Americans’ communications.

The government has made a mockery of that protection by relying on select Supreme Court cases, decided before the era of the public Internet and cellphones, to argue that citizens have no expectation of privacy in either phone metadata or in e-mails or other private electronic messages that it stores with third parties.

This hairsplitting is inimical to privacy and contrary to what at least five justices ruled just last year in a case called United States v. Jones. One of the most conservative justices on the Court, Samuel A. Alito Jr., wrote that where even public information about individuals is monitored over the long term, at some point, government crosses a line and must comply with the protections of the Fourth Amendment. That principle is, if anything, even more true for Americans’ sensitive nonpublic information like phone metadata and social networking activity.

We may never know all the details of the mass surveillance programs, but we know this: The administration has justified them through abuse of language, intentional evasion of statutory protections, secret, unreviewable investigative procedures and constitutional arguments that make a mockery of the government’s professed concern with protecting Americans’ privacy. It’s time to call the N.S.A.’s mass surveillance programs what they are: criminal.

Government officials who seek to defend these criminal programs will stop at nothing to ensure their continuity. They have shown that they will perjure themselves, and you can be sure that they are working hard behind the scenes right now to kill the Amash/Conyers amendment in its tracks.

We cannot let that happen.

Edward Snowden told the public that his greatest fear is that, having been granted a once in a generation opportunity to roll back the surveillance state, we the people will fail to turn our outrage into meaningful action. Let’s prove all the doubters and the naysayers wrong, and honor Snowden's sacrifice.

We have less than 48 hours to make this happen. Take action now to demand an end to Section 215 metadata spying. Email your friends and family that link. Post it to every network. Make the phone call to your congressperson. Tweet like hell.

If we truly live in a democratic society, we get to decide how much power the spy agencies can possess. We absolutely cannot leave those decisions to people like Steven Bradbury.

Let’s flex some muscle and show them who’s boss.

© 2021 ACLU of Massachusetts.