THE BLOG
06/10/2013 03:56 pm ET Updated Aug 10, 2013

The NSA and Verizon: Paranoid Delusions or an Assault on Your Rights?

On the heels of a Supreme Court ruling which decided that the unabridged collection of DNA at arrest does not violate privacy rights comes news that the National Security Administration (NSA) has ordered Verizon to turn over millions of calling records.

Well... hell. It definitely has not been a good week for the Fourth Amendment, to say the least.

As I'm sure you've all heard, there's a "top secret" court order which mandates that Verizon Business Services turn over metadata from millions of customers, including the outgoing and incoming phone numbers of a call, the time and duration of a call, and the location from which the call was made. These records are not limited to foreign surveillance, and they do not target specific individuals for investigation. Rather, this is a sweeping collection of information from suspicionless citizens.

An author of the Patriot Act, on which this court order is based, calls the manipulation of the act and the NSA court order "excessive and un-American." Critics, including U.S. Senators and the American Civil Liberties Union, call the widespread domestic surveillance "stunning" and "beyond Orwellian."

Ladies and gentlemen, hold on to your seats. We're all in for a ride down the "police-state" highway.

Though the White House defends the collection of metadata as necessary for combating terrorism, and says that the content of calls is not monitored, we critics say that a limitless collection of call records is a gross invasion of privacy. Security officials indicate that the metadata can be used to "flag" an individual for closer investigation, but there is no clause that allows for the destruction of information regarding millions of innocent callers caught in the dragnet.

Proponents of the domestic surveillance say the metadata collected is minimally invasive and is not personally identifiable. But how hard is it to determine endless information about a person based on his or her phone number and location? Constitutional combatants, like myself, should see this ruse for what it really is: the government is testing the waters... they are drawing a line in the sand.

So, let's tally up the marks. The United States Supreme Court has ruled by a narrow margin that collecting a person's DNA upon arrest is a valid police procedure and is not equivalent to an unreasonable search and seizure. Now we have indication that the FBI and NSA have access to the phone records of millions of Verizon subscribers.

Sounds like our privacy rights might be in for a few more losing fights.

The Fourth Amendment to the U.S. Constitution asserts that, "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 amendment is intended to protect our expectations of privacy, to protect us from being searched without cause. Yet millions of Verizon subscribers, and quite possibly countless subscribers of other telecommunications companies, are having their personal phone call information mined and monitored. Who knows how many other "top secret" court orders are currently in action with countless other information providers?

Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, told the Washington Post, "This suggests that the government has been compiling a comprehensive record of Americans' associations and possibly even their whereabouts." Where is the probable cause to spy on Americans in this way? While certainly foreign and domestic terrorism are threats against which we must be protected, threatening our basic liberties and constitutional rights in order to do so seems to be a terrible abuse of governmental power.

Am I just paranoid? Possibly. However, as a criminal defense attorney, I see the government trample on my clients' constitutional rights day-in and day-out. So, yeah... maybe I am a little bit cynical. Maybe I am a little bit biased. But I'm not naïve.

The top two counter arguments I've heard so far:
  1. "This is absolutely necessary to catch all the terrorists and protect our children."
  2. "You shouldn't be worried if you aren't doing anything illegal."

Come on, America. We are smarter than that.

As to the first argument, such a massive invasion of privacy on such a wide scale is not necessary to focus on the small percentage of individuals with terroristic-intentions. If the government is really doing its due-diligence, it should be able to narrow down the individuals it needs to focus on a tad bit better.

As to the second argument, where is the logic there? If you take it to its absurd conclusion, you are basically telling me that, if you have never, will never, and could never violate the law, then it's okay for the government to spy on you. I disagree wholeheartedly.

The government doesn't get to see everything you've got just because you've got nothing to hide.

As the scope of the court order comes to light, many Americans, including myself, are uneasy. To what lengths will the government go in compiling information -- phone records, DNA, etc. -- about innocent citizens not suspected of wrongdoing? Big brother may be watching, indeed.

The government won't know how far they can stretch their "intelligence-gathering" methods until they're caught and told to stop. Let's just hope they went all-in on their first hand.

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