The revelations this week that the federal government has been scooping up records of telephone calls inside the United States for seven years, and secretly collecting information from Internet companies on foreigners overseas for nearly six years, have elicited predictable outrage from liberals and civil libertarians.
Is the United States no better than those governed by repressive dictators who have no regard for individual rights? Could President Obama credibly raise human rights issues with his Chinese counterpart, Xi Jinping, at a summit meeting on Friday, if America is running its own vast surveillance state? Has Mr. Obama, for all his talk of ending the “war on terror,” taken data mining to new levels unimagined by his predecessor, George W. Bush?
Hold it just a minute.
From what has been made public, we know that the F.B.I., under the Obama administration, used its powers under the Patriot Act to seek these records; that judges with the Foreign Intelligence Surveillance Court approved these searches; and that members of Congress with oversight powers over the intelligence community were briefed about the searches. Some of them, like Senators Mark Udall, Democrat of Colorado, and Ron Wyden, Democrat of Oregon, were uncomfortable with the scope of the data gathering and made their disapproval public, even though secrecy rules prohibited them from being more specific about their concerns, until now.
It is evident, then, that all three branches of government were involved in the records search afoot at the telecommunications carriers and Internet companies. Section 215 of the Patriot Act, which Congress passed after 9/11, governed the executive branch’s search authority. Oversight committees were kept in the loop, as Senator Dianne Feinstein, the California Democrat who leads the Senate Intelligence Committee, has confirmed. And the authorizations were approved by life-tenured federal judges who are sworn to uphold the Constitution, including the Fourth Amendment, which prohibits unreasonable searches and seizures. On the surface, our system of checks and balances seems to be working.
We cannot rule out the possibility that the voluminous records obtained by the government might, some day, be illegally misused. But there is no evidence so far that that has occurred.
First, no contents of phone conversations are being provided to the government. Indeed, the Patriot Act precludes provision of call contents.
Second, the two senators who complained in public, Mr. Wyden and Mr. Udall, apparently were in a minority on the committee. Otherwise, the bipartisan committee could have held hearings, either in closed or open session, to seek further details and prepare legislation to limit the F.B.I.’s data-gathering powers.
Third, unlike you and me, federal judges on the surveillance court, established in 1978, reviewed the government’s request for information and the reasons provided to support the request. We do know that the search requests have required periodic renewal. And we know that, for reasons the judges thought sufficient, the contents of the order were sealed, with special mention that it was not to be available to foreign entities. Judge Roger Vinson, who signed the July order extending the requirement that Verizon furnish phone logs, struck a balance: he put a time limit on the data-gathering, to ensure executive accountability, but also issued a secrecy order, to protect national security.
But shouldn’t I be concerned that F.B.I. agents are trampling my rights, just like the I.R.S. might have trampled the rights of certain organizations seeking tax-exempt status? As it turns out, the answer is no. The raw “metadata” requested will not be directly seen by any F.B.I. agent.
Rather, a computer will sort through the millions of calls and isolate a very small number for further scrutiny. Perhaps one of the numbers was called by one of the Tsarnaev brothers before the Boston Marathon bombings. Or perhaps a call was placed by a Verizon customer to a known operative of Al Qaeda. The Supreme Court long ago authorized law enforcement agencies to obtain call logs — albeit on paper rather than from a computer database — without full probable cause to believe a crime had been committed.
To listen to the contents of any particular call or to place a wiretap on a particular phone, the F.B.I. would have to go back to a judge for a more detailed order, this time showing probable cause sufficient to meet stringent Fourth Amendment standards. Otherwise, the evidence from the call could not be used to prosecute the caller or call recipient. Privacy rights, in short, have been minimally intruded upon for national security protections.
Finally, let’s consider the alternative some activist groups and media organizations seek: more narrowly tailored gathering of records, and full transparency after the fact about what kinds of records have been obtained. There are obvious problems with this approach. Let’s say the judicial order leaked to The Guardian this week had specified the phone numbers about which the F.B.I. had concerns. Releasing those numbers would surely have tipped off the people using those numbers, or their associates, and caused them to change their mode of communicating. Already, there is a real probability that individuals planning terrorist activities are using channels of communication that will not show up in the databases of service providers. If the order revealed more expansively the standards the F.B.I. used to seek broad sets of records, again those seeking to avoid detection for terrorism-related activities could simply change their methods of doing business.
In short, I think I will take my chances and trust the three branches of government involved in the Verizon request to look out for my interest. Privacy advocates, civil libertarians, small-government activists and liberal media organizations are, of course, are welcome to continue working to keep them honest. But I will move back to my daily activities, free from paranoid concerns that my government is spying on me.
Charles A. Shanor, a professor of law at Emory, is the author, most recently, of the casebook Counterterrorism Law.