This contains no spoilers, unless you consider fact checking a legal issue a spoiler. If that’s so, do not read on.
Like many people, I spent much of this snowy northeast President’s Day weekend binge watching television. House of Cards season two, to be precise.
Barely an hour into my television marathon, a police officer spoke the following dialogue, which sent me into a screaming fit:
"Even if we got the case reopened, which isn't gonna happen, do you have any idea how hard it is to get a warrant for phone data?"
I’m not going to tell you why he said this, because I don’t want to spoil the fun for people who intend to watch but haven’t yet. But I will spoil something else; namely, the show’s credibility as a source for any kind of information whatsoever about contemporary surveillance law.
The offending statement I've excerpted here is not the only mistake the writers made where spying is concerned. I'm choosing to use it to illustrate the point for two reasons. First, because I can do so without spoiling the plot. And second, because I'm probably not alone among people who thought twice about this sentence—but I bet many people thought it was off for the wrong reason.
Lots of people probably saw the above clip and thought, "Oh, yeah right. We know the NSA and FBI collect our phone records in bulk. Nice try." But that’s not the problem. The NSA and FBI likely do not spend their time or resources doling out information to police departments (even in Washington DC); intelligence agencies are known to be covetous about their data troves, and the information usually only trickles down if the feds want it to.
No, the cop’s statement is ridiculous because in Washington DC, like in most of the United States, police officers can almost always obtain phone records with a simple subpoena. A subpoena is not a warrant. It is never seen by a judge. It requires no evidence of criminal activity. Firing off subpoenas is, for a prosecutor, no different from a doctor writing prescriptions. They can write and issue as many as they want in a day, as long as their hand does not tire from the effort.
In order to get the phone records sought here, the Metro DC cop would only have had to call the US Attorney for the District of Columbia, tell her about the case he’s looking into, and request a subpoena for the records in question. That’s it. The phone company probably would have shipped them within hours, or a day—tops. There was literally nothing in the law stopping the young officer from obtaining those records.
Why does this matter?
The writers misrepresented the background for one of the most important surveillance law questions of our day: Can police and prosecutors access our metadata without warrants? Most of the time, in most places in the US, for the vast majority of types of metadata, the answer is yes. You wouldn't know so from watching House of Cards.
While this error struck me as particularly atrocious in the post-Snowden era, I don't mean to be overly hard on the House of Cards team. As my colleague Jay Stanley wrote, the surveillance state makes it difficult for writers to give us compelling and believable crime dramas. The ever-watchful eye makes it hard to hide, muddling the once relatively simple task of building a tight, complex, and believable plot about getting away:
In countless books and movies, on-the-lam heroes escape onto the subway, place anonymous phone calls, enter libraries and other public places, or otherwise use urban anonymity to hide from their pursuers. Today and in the near future, surveillance technology—pervasive satellites, CCTV, face recognition, drones, license plate readers, biometric and RFID readers, GPS, data mining, dragnet financial and communications surveillance systems, and who-knows-what-else—will render it harder and harder to believe that a person facing a malevolent government will long be able to escape its eye, especially while circulating through society enough to do anything interesting.
Think about it: the stories told in the films Thelma and Louise and Ferris Bueller's Day Off would not be believable today. It’s become much more difficult to craft convincing narratives that describe heroes who get away with rule-breaking, escape plots, or secretive relationships that end in serious criminality. But that's no excuse for sloppy research or intentional misinformation, particularly when the stakes are so high.
There could have been a million other ways of keeping the plot line going in House of Cards without making it seem like police in Washington DC have an impossible time of getting their hands on call data records. They don't.
If we ever hope to change bad statutes that enable the government to peek into our private lives without so much as a whiff of evidence against us, we need millions more people to understand the current state of the law. Acting as if the police need a warrant to obtain information they can get with what basically amounts to a post-it note takes us in the wrong direction.