Americans are confused about their rights under the Fourth Amendment to the US Constitution. It is understandable that the average citizen is not well-versed in constitutional law but rabid propagandists like Guardian writer Glenn Greenwald have been publishing wild fabrications and implications in an effort to frighten Americans. Greenwald is a political activist, not a journalist, and he is a known supporter of the relatively small Internet Anarchy movement. Anarchists by definition have no organization or leadership but they nonetheless produce a few thought-leaders in each generation and Greenwald by virtue of his public stature and influence has emerged as a leading Anarhical thought-leader.
The catalyst for this discussion was the unauthorized disclosure by former Booz Allen Hamilton contractor Edward Snowden, a rogue computer operator who took it upon himself download (without proper authorization) secret government files from the National Security Agency’s computer network. It was Snowden’s intention to embarrass the US government by exposing the methods it was using to track terrorist organizations whose members use the American telecommunications network and Internet services.
There is no single tracking program but a database that the NSA named PRISM was one of the first disclosures produced by Snowden through Greenwald and other media writers. PRISM is a repository where the NSA records the results of its investigations into individual communications (provided through court-issued warrants) alongside a huge volume of metadata that is provided by telecommunications companies.
Snowden wrongly concluded that this collection of metadata violates Americans’ Fourth Amendment rights. Unfortunately for Snowden an his reporters, by the time he made the irrevocable decision to spy upon his own country and betray its secrets, the US Supreme Court had already decided that metadata is not protected by the Fourth Amendment. Hence, Snowden’s claims that the NSA is violating Americans’ privacy with unreasonable search and seizure are completely without merit.
Americans should not be faulted for failing to understand the immense blunder that Edward Snowden has made. Article I, Section 8 of the Constitution begins with:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;…
Another important passage appears earlier in Section 5, which reads in part:
Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.
These two parts of the Constitution authorize the US Congress to take appropriate measures to defend the nation and, if necessary, to keep some or all of its deliberations regarding those measures secret from the public. This confers a huge responsibility upon our elected representatives to execute their duties faithfully and with respect to the rights and property of citizens.
Of course, our founding fathers did not leave matters there. When they created the first ten amendments to the Constitution (the so-called “Bill of Rights”) they included a very important protection in the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This right has been upheld by the courts through more than 200 years of case law, but the courts have also extended the powers of the state to search and seizure through clarifications. In order to sort out and abridge intrusions into an ever-expanding private space, in 1967 the US Supreme Court established the Reasonable Expectation of Privacy Test. This test is used today to determine if the search and seizure of evidence is necessary to fulfill Congress’ mandate to defend the country.
Hence, legal scholars note, the contents of your mail or phone calls are private information that can only be seized in accordance with the Fourth Amendment’s stipulations; but information about your mail or phone calls is deemed to be metadata and metadata is not subject to Fourth Amendment protection. We do, in fact, allow the government to search our bodies and property without warrants at airports and border crossings. These activities are protected because they are conducted on behalf of our safety.
Therefore Congress has established by practice and with the support of the US courts a reasonable expectation of search that is used to defend and protect the citizens by means of systematic but minimal intrusion into their private space. This is considered to be a reasonable compromise between the mandates and restrictions within which Congress must act.
Telephone companies must therefore disclose to the government all such metadata as they collect about phone calls and callers. In order to learn more about the calls and callers, however, the government must affirm to a appropriate court that it has reasonable grounds to inspect the details of calls and callers. By demonstrating a probable association between a caller and a known terrorist organization (such as Al Qaeda) the government can usually get the warrant it needs. However, demonstrating a connection between an individual and a terrorist group does not in any way mean that the individual is actively promoting or supporting the group — the individual may not even be aware that he or she is interacting with a terrorist organization. The facts of the relationship and communications must be turned over to appropriate law enforcement agencies to make the determination of whether a crime has been committed.
With respect to the Internet, the protections of the Fourth Amendment have not been extended so quickly and easily to our online communications. Much more metadata exists about Internet communications but the communications themselves, because of the nature of the technology, may not be fully grandfathered into the Fourth Amendment space. One reason for this is that emails are broken up into tiny packets that are transmitted across the Internet to many servers. The servers can each inspect the emails (and many do) for personal reasons (in practice usually to detect spam and/or unauthorized use). The packets eventually reach their destinations and are reunited. But this practice of public inspection may render moot the need for a warrant, although the principle has not yet been used in court. The government usually seeks a warrant to compel Internet service providers to disclose details of their users’ activities.
Why did the NSA need to collect this information, however? It should be clear that Al Qaeda operatives have been using our telephone and email systems (along with other communications technology) against us. The Congress therefore had to take action to authorize defensive monitoring of all activity across the networks. This defensive monitoring was reasonably limited to the collection of metadata which does not provide intimate details of user privacy to any government employees or contractors who have been authorized to review the data.
As a computer administer Edward Snowden was only granted limited authority to manage the data that the government collects. His duties did not call for conducting investigations, gathering intelligence, or analyzing and interpreting the data that is collected. Snowden has made false and egregious claims about the extent of his authority, presumably as a means of establishing his credibility. His disclosures are thus not provided from the point of view of a trained intelligence operative or analyst. And given that case law is clearly positioned against Snowden’s belief that the Fourth Amendment is being violated, he has consciously and willfully crossed a legal line without any rational justification based on the needs of the people.
The consequences of these serious disclosures may never be fully explained to the American people. What we can be sure of is that Al Qaeda and their allies are now aware of the technology that has been used to interfere with many of their planned attacks against western nations. Intelligence officials have revealed that Al Qaeda is already changing its methods of communication. By his actions Edward Snowden has rendered aid to the enemy in alerting them to the extent of NSA monitoring of their communications sufficient to help them respond in a decisive and coherent manner.
It is probably for good reason that Edward Snowden is considered a real Supervillain who changed history.
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