NSA Surveillance Program Is Unreasonable, Unwarranted, and Unconstitutional

NSA Fort MeadeIn his latest post at Ricochet.com, libertarian law professor Richard Epstein responded to criticism of his earlier op-ed, co-authored with Cato’s Roger Pilon, defending the NSA’s secret data-gathering programs. While conceding factual errors on a couple of points, Epstein maintained his core argument that the mass surveillance of millions of Americans’ internet and telecommunications data constitutes both a necessary and reasonable search, because of the continuing threat of terrorism.

“The amorphous nature of the threat requires extensive surveillance until we can identify responsible parties against whom direct action can be taken. … It makes no sense to limit metadata searches to known suspects when unknown suspects may well pose the central danger,” Epstein writes. “Therefore, the correct approach is to cast the net wide by tracing connections, invoking more intrusive searches only when justified by concrete evidence. … But curtailing or eliminating general surveillance for abstract concerns about abuse is a dangerous, if not reckless, approach.”

This is certainly an extraordinary claim. Regardless of the crime, “unknown suspects” may always pose a greater danger than known ones, by mere virtue of their anonymity. The fact police haven’t identified a suspect yet does not make everyone a suspect, nor does a 0.00001% chance of any given individual being a terrorist make it “reasonable” to suspend normal civil liberties protections for the entire population.

us murdersIn fact, the less probable the threat, the more “amorphous” it becomes, and the harder it is to find the responsible parties. By this logic, the least likely threats justify the most serious infringements on the largest number of people. Since 1968, over 800,000 people have been murdered in the United States; including 9/11, only 3,245 have been killed in terrorist incidents. The threat of terrorism is orders of magnitude smaller than the threat of murder, but we are to believe that, not in spite of that fact, but because of it, we must endure breaches of privacy to catch terrorists that we would never allow to catch murderers.

Indeed, in his original op-ed, Epstein defended the NSA program on the grounds that the data collected couldn’t be used for ordinary law enforcement purposes, like catching murderers, rapists, or tax-evaders: “The content can be used only for national security issues, not even ordinary police work.”

He was just wrong about that–information gathered under the Foreign Intelligence Surveillance Act can be used for non-national security related crimes–but even if it couldn’t, on what basis could you justify this inversion of priorities? “National security issues,” even in the aggregate, pose a much smaller risk to the lives of Americans than domestic crimes committed every day by US citizens against their neighbors.

Furthermore, notice who these surveillance programs are trying to identify: “unknown suspects.” The NSA isn’t, mainly, trying to find the guilty parties behind specific crimes: it is trying to locate terrorists before they commit terrorism, by linking their communications to known bad actors or by storing tons of data that can later be accessed for data-mining when the government desires to look up associations of a particular individual. The reason why these individuals are, by definition, unknown is that we are looking for suspects of crimes that haven’t been committed yet. It is a future-crime program.

nsa-tech-reutersThe fact there may be someone, somewhere, thinking about doing bad things does not give the government probable cause to collect, store, and analyze all of our telecommunications records. Yet, this appeared to be the logic of the secret FISA court, which, in 2006, radically expanded the “business records” provision of the Patriot Act, which allows the FBI to compel companies to turn over specific customer data relevant to a terrorism investigation, to cover the entirety of a telephone company’s call database. All of your private communications are now considered relevant to terrorism investigations, because it may be “helpful,” at some point, to the government’s interest in identifying suspects.

At the very least, the burden of proof is on the government to demonstrate it could not locate such persons using traditional, targeted investigatory tools and that the tradeoff in privacy is worth the reduced risk of terrorism. But we have had no such informed debate, and cannot while the government refuses to share important details about how these programs work and what allegedly indispensable role they played in stopping terror attacks. The government’s response to the public’s concerns has been “trust us,” with the implication that it need not reciprocate.

Fear-mongering about nuclear bombs and ticking clocks aside, the eternal, omnipresent, and amorphous threat of bad things happening should not create a permanent state of “exigent circumstances” which supersede ordinary 4th Amendment protections. If the infinitesimal risk of terrorism can reasonably justify suspending our right to privacy in this way, anything can justify anything.