Must Reads for Americans: When the Bizarre becomes Logical

Wednesday, January 1st, 2014

After more reports on NSA and tech, these concerning Apple, I decided to include the recent ruling by Judge Pauley in the morning’s reading. I think the ruling should be required reading for Americans. The prior link goes to what appears to be a photocopy of the tezt, which is just about as bad as a pdf for cutting and pasting. One of the significant issues at the heart of the ACLU’s case is the fact that they’re Verizon customers and that the NSA has access therefore to their workflow and communications. We learn this under the Claims section on page 12. The next section has to do with whether or not the ACLU has standing to sue. The government is claiming that the ACLU doesn’t have that status, which is a good move because Verizon has a lot of customers (see page 24), potentially making for a pretty bad-ass class action. I’m a Verizon customer, also, and I also use lots of keywords that might flag me on this blog and in my Twitter stream.

The court argues, using an Amnesty International case wherein Amnesty failed to “concretely” prove “imminent” injury, that the ACLU does have standing to sue because the NSA had indeed captured its data. That’s about all the love the ACLU is going to get  from the Judge, though (and I’m not quite sure after reading the whole thing that he thinks they do have standing). Most of the reporting on the ruling goes to a question of constitutionality. But my reading of the ruling is that the thinking here is much more complicated. Consider this snippet:

Read in harmony, the Stored Communications Act does not limit the Government’s ability to obtain information from communications providers under section 215 because section 215 orders are functionally equivalent to grand jury subpoenas. Section 215 authorizes the Government to seek records that may be obtained with a grand jury subpoena, such as telephony metadata under the Stored Communications Act.

The Section 215 question here is significant. That’s the part of the Patriot Act that requires, say, the FBI to prove that it needs certain info to pursue a case, and that’s where the FISA court comes into the picture. But the distinction for the court is that it’s not the FBI doing the collecting. That activity is limited only to the NSA. (See page 33). I think Judge Pauley is at his best when he explains why bulk collection can be done by the NSA. He argues that “all phone call metadata” is a class of things the FBI might require as “relevant” in an investigation and that to prohibit the collection of this class of things would  “require the Government to determine wrongdoing before issuing a subpoena–but that determination is the primary purpose of a subpoena” (34). And that’s followed by this: “And in the context of a counterterrorism investigation, that after-the-attack determination would be too late.” And, “Here, there is no way for the Government to know which particle of telephony metadata will lead to useful counterterrorism information.”

Then comes the typical Katz case argument about the “presumption of privacy” issue. But I don’t intent to minimize Pauley’s arguments in this regard because he goes into some pretty good analysis against the ACLU on their privacy assertions and their assertions about “sweep” and “bulk.”

But now to the point. This ruling should be read in full and not just by lawyers. There’s more in it than I can go after at the moment. However, reading the ruling leaves me with a bad taste in the mouth, and I think that Pauley is incorrect. Everyone can understand that keeping information from “the enemy” is critical. If the Red Team coach knows the Blue Team’s plays, then there’s no real game to be played, and if the NSA or CIA broadcasted its moves, whatever group or individual who intended harm would alter their strategy, as any criminal would. But it seems to me the judge is writing in the bizarre context or world where a “war on terror” has been unleashed, and outside this context or world–this new “war condition”–his arguments wouldn’t be required. So the real question is, is any of this stuff legal, not just one program or several by the NSA? If the Patriot Act works inside the context of a “war on terror,” then maybe it’s the “war on terror” that’s the problem here.

I did a little reading on the controversial 215 section. Such language is about as bizarre as it gets, so many safeguards, so many “presumed” safeguards that the law of the falling dominoes would seem to be realized. It’s terrifying language, a house made of a million toothpicks. Why, because it sets up a massive “begging the question” argument: it’s constitutional because it’s constitutional, like claiming that something is legal by virtue of it being on the books, and by the way we just need to do it.

For Pauley, we’re caught between a piece of steel and an anvil. But he sets up his own and our problem with all this, the balance between liberty and security.  He writes, first quoting from Boumediene, “‘Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.’ The success of one helps protect the other. Like the 9/11 Commission observed: The choice between liberty and security is a false one, as nothing is more apt to imperil civil liberties that the success of a terrorist attack on American soil” (52). That’s a pretty big generalization and amounts to telling people what they should fear most. Rising sea levels will also do a number on civil liberties. This language could only be written in the cloud of the “war on terror” paradigm. And that’s what scares me the most about our current NSA mess.


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