For years, the federal government has been conducting secret investigations, seizures and searches under the authority of what is commonly referred to as a FISA court. The idea was that since they were looking for such important and sensitive information, disclosure in a court of record (like our country is founded on) would jeopardize lives. So, when the government wanted to search your calls, bank accounts, movements etc… without your knowledge, they would petition the FISA court ex parte (without the other side represented). The secret court was supposed to take into account that the application was made ex parte and ensure that target’s rights were not being violated. The patriot Act added things that the government could ask for, but all along and even after the patriot act, the government was supposed to show that they had a specific reason to ask for the information they were requesting.
Through greediness on the part of the government and a flagrant disregard for individual liberties on the part of the FISA court judges, the government fell into a pattern of requesting all call data from common cell phone providers. They justified their position by saying that they were not violating anyone’s right to be free from unreasonable searches and seizures because they had not requested the owner of each number. What they do have was the number called, the number called from, the routing data or hops, the duration, how often that number was called and all the other data that is generated each time you make a call that is stored by the carrier. Anyone with a brain knows that you can google phone numbers and often discover the identity of the owner from that time you advertised your car on craigslist. If necessary, agents could compare the data to information that you have made public like twitter and facebook feeds and identify the caller from that information very quickly. The government was required to periodically re-request the order from the FISA court, and did so 41 times since 2006. (for those of you bad at math, they did it every time it expired)
So if it is secret, how did we learn about it? Edward Snowden. After he broke the news(and the law), customers and citizens were outraged at the overreaching. Verizon, the company named in the suit, you see, was prohibited by the §215 order from disclosing that they had even received the overbroad request, and since it was ex parte, no one represented your interests since the FISA judges have long since become lapdogs of the government.
This is where the legal wrangling comes in. The government actually argued that the people shouldn’t be allowed to sue in a public court because the order was never meant to be public and that you as the people should have lived in blissful ignorance of these violations of your constitutional rights. (I paraphrase) You as a citizen have no recourse in the FISA court; because for you to even know it was going on, someone had to have broken the law. The party that the request was made to (Verizon in this case) could challenge the order to a panel of FISA judges, but they would have to do it every 90 days and would have spent far more money on fighting in a secret court than they would just turning over the requested data.
The government then argued that the harm wasn’t in collecting the data but only when they searched the data and that they didn’t really search it that often. The court disagreed and said that the harm was done when the data was obtained from the carrier and when it was held indefinitely with no specific investigation. Enter the Patriot Act. The government argued “terrorism.” They think that by claiming terrorism, they can justify their trampling of the Constitution and everyone will swallow eroding Constitution as a necessary evil to combat those that wish to do us harm. Somehow degrading the very rights we are seeking to protect in order to protect them makes sense to these people. The Court disagreed and said the law means what it means and if congress wants to expand it, then they will have to do so.
The government then claimed that since you gave the information to a third party, you no longer had an expectation of privacy in that information, so they could grab it up like garbage out of the back of the trash truck. They harken back to the old days where that was the law, but recently the Supreme Court has recognized that times are changing and a person carries a great deal of information on their person in their electronic devices. They acknowledge that performing even the most mundane tasks involves generating volumes of data given to third parties. The court used physical surveillance as an example. law enforcement may physically follow a person for as long as they like in public, but they can’t install an electronic tracker without a court order. Even though the information was given to a third party and could have been obtained through some other form of legal process like a grand jury subpoena, or search warrant, the court refused to liken the FISA blanket order to those processes.
So what? Who cares? Isn’t it worth it if they don’t even have my name? No, it isn’t ok. If the government knows who you call regularly and where you go, they can gather information that they are not entitled to. Things like who you donate to, where you spend your time, which party you affiliate with, whether you go see a therapist every week for a mental illness. If the average citizen knew the extent to which the government was surveilling him, it would have a profound chilling effect on what he said, where he went, and what he chose to tell others that he believed. The founders are rolling in their graves, but our expectation of privacy is being viewed in a new light by the courts in this emerging technological world. Maybe with your continued involvement and willingness to stand up against unconstitutional government intrusion, we will get back the country we all love so much.