Is What the NSA Is Doing Constitutional?

James Clapper is President Obama's director of national intelligence.
During a March 12, 2013, U.S. Senate Select Committee on Intelligence hearing, Sen. Ron Wyden, D-Ore., asked Director Clapper, "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?"

Mr. Clapper responded, "No, sir."

Sen. Wyden then asked, "It does not?" and Clapper said, "Not wittingly. There are cases where they could inadvertently, perhaps, collect, but not wittingly."

Now, two contrary opinions by two U. S. District Court Judges, Richard J. Leon and William H. Paulley III, make it very clear that Director Clapper flat-out lied.

What must be understood, is this: Both Judge Leon (a Bush appointee) and Judge Paulley, (a Clinton appointee) accepted the government's version of the facts. They made their finding based on the government's own description of the NSA's Bulk Metadata Program (BMP).

Under the BMP, which was developed under Section 1861 of the Patriot Act, the NSA collects metadata. That includes information about what phone numbers were used to make and receive calls, when the calls took place, and how long they lasted.

According to the government, the BMP is used to detect:

-- Domestic U.S. phone numbers calling outside of the U.S. to foreign phone numbers associated with terrorist groups;

-- Foreign phone numbers associated with terrorist groups calling into the U.S. to U.S. phone numbers; and

-- "Possible terrorist-related communications" between U.S. phone numbers inside the U.S.

But that is only the beginning. Assume a phone call from Pakistan, from number (555) 555-5555, comes into the United States to phone number (123) 456-7890.

If one of 22 designated officials at the NSA determines that either of those numbers is "associated with a terrorist group," then a NSA intelligence analyst -- without seeking a search warrant from a judge -- can authorize a "query" if he decides that facts exist which give rise to "a reasonable articulable suspicion" that either of the phone numbers in question is associated with one or more foreign terrorist organizations ("the seed"). The "query" involves a "three-hop" analysis.

In plain English, this means that if a search starts with telephone number (123) 456-7890 as the "seed," the "first hop" will include all the phone numbers that (123) 456-7890 has called or received calls from in the last five years (say, 100 numbers).

The "second hop" will include all the phone numbers that each of those 100 numbers has called or received calls from in the last five years (say, 100 numbers for each one of the 100 "first hop" numbers, or 10,000 total).

Finally, the "third hop" will include all the phone numbers that each of those 10,000 numbers has called or received calls from in the last five years (say, 100 numbers for each one of the 10,000 "second hop" numbers, or 1,000,000 total).

What must also be understood, is that once a query is conducted and it returns a "universe" of responsive records (i.e., a "universe" limited to records of communications within "three hops" from the seed), trained NSA analysts may then perform new searches and otherwise perform intelligence analysis within that universe of data without further "reasonable articulable suspicion."

So, is all this constitutional?

The government claims it is. It argues that the BMP has been approved by an order of the Foreign Intelligence Surveillance Court (FISC).

The government assured the judges that metadata "does not include any information about the content of those calls, or the names, addresses, or financial information of any party to the calls." Finally, the government has stated the orders of the FISC governing the program specifically provide that the metadata "records may be accessed only for counterterrorism purposes."

What must be understood, is that what the NSA is doing raises grave Fourth Amendment questions. The Fourth Amendment provides "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."

Is the FISC order authorizing the BMP consistent with the Fourth Amendment? Sen. Rand Paul, R- Ky., doesn't think so, and has begun a class action law suit, which asks whether is it constitutional to "have a single warrant apply to millions of people."

I have written this piece, not to takes sides, but to set out what the NSA is doing according to two federal judges. Two companion pieces will follow discussing the contrary rulings of those two judges.

So did Director Clapper lie? Is this "inadvertent collection?"

You decide.

Posted Online:  Jan. 09, 2014, 12:00 am - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea