Every call to your mother, father, brothers, sisters, sons, daughters, nieces, nephews, aunts, uncles, friends, neighbors, spouses, girlfriends, boyfriends, and business associates is being swept up and delivered to the government through a metadata mining program. That is, in part, the information that was revealed by Edward Snowden, the former National Security Agency's contract employee who leaked information to the Guardian and the Washington Post about the United States government's surveillance of its citizens. Whether Mr. Snowden is a heroic whistleblower or a violator of U.S. criminal laws will be for the lawyers, prosecutors, diplomats and the courts to sort out. One thing that Mr. Snowden did was to give a wake up call, if you will, to us as citizens of this great nation to ask how much is too much.
In essence, Mr. Snowden's disclosures revealed that the government, through the National Security Agency (N.S.A.), was obtaining the phone records of American citizens, along with online information that passes through the Internet companies like Google, Microsoft, Facebook, Apple, Yahoo, Skype and AOL, among others. The online surveillance was directed primarily at foreigners through a program dubbed "PRISM." The Snowden disclosures also revealed that the U.S. was engaged in cyber espionage and had protocols for when offensive cyber attacks could be engaged in.
Living in an open and free society has always presented challenges. Today, many of us voluntarily give up tons of private and personal information to the public by the choices we make in participating in the various forms of social media. However, it is one thing to knowingly participate in public forums and quite another for the government to secretly gobble up millions of bits of information about our private doings without our consent and knowledge or without a warrant based upon probable cause.. We know that when we stand in the middle of Times Square in New York City or most other public spaces our doings are exposed to everyone's cameras including the government's. We may even accept the arguments that such governmental surveillance in these public spaces is essential to protecting us from acts of terror or other criminal acts. Certainly, such surveillance helps to determine what may have actually happened in situations like the recent marathon bombings in Boston, Mass. But to intrude in our private doings, including sweeping up data associated with our private phone calls and the data about us that may be revealed from the government's mining of that information in the name of national security and without a warrant based upon some probable cause as outlined in the Fourth Amendment to the constitution might be a bit much.
We all want to be secure from acts of terrorism and the government has plenty of ability to do so without further encroaching upon our civil liberties. The pain and anger of the average citizen when grieving from acts of terror as was the case immediately following the 9/11 attacks opened the door to the passage of the "Patriot Act" in 2001, which, along with the "Foreign Intelligence Surveillance Act" of 1978, has provided the avenues to the current state of big brother watching you. It is still astonishing that former Wisconsin Senator Russ Feingold cast the only vote against the "Patriot Act" in the United States Senate in October 2001. At the time he said in opposing the act:
Of course there is no doubt that if we lived in a police state, it would be easier to catch terrorists. If we lived in a country that allowed the government to open your mail, eavesdrop on your phone conversations, or intercept your email communications; if we lived in a country that allowed the government to hold people in jail indefinitely based upon what they write or think, or based on mere suspicion that they are up to no good, then the government would no doubt discover and arrest more terrorists... Preserving our freedom is one of the main reasons that we are now engaged in this new war on terrorism. We will lose that war without firing a shot if we sacrifice the liberties of the American people...
Feingold's principles may have cost him his seat in the senate, but his courage in speaking truth to power will live in infamy. There is little doubt that to be shortsighted about our liberty is to be blind to the perils of its loss.
We have seen how actions we have taken in the name of securing our nation have blown back upon us; just think Iran and Afghanistan. Snowden has woken us to the possibility of what may happen to our rights under the 4th Amendment to the Constitution. If we don't draw a line in defense our domestic liberties we may live to regret further loss of our right to be secure in our persons, houses, papers, and effects, against unreasonable searches and seizures. The phone records metadata mining is really a form of electronic "stop and frisk" and we should speak loud when we say that such programs must be changed to avoid unconstitutional intrusions into our daily lives. Equal justice demands nothing less.
Michael A. Hardy, Esq. is General Counsel and Executive Vice-President to National Action Network (NAN). He has been involved in many of this nation's highest profiled cases involving violations of civil or human rights. He continues to supervise National Action Network's crisis unit and hosts a monthly free legal clinic at NAN New York City's House of Justice. Attorney Hardy has a weekly blog entitled Equal Justice that can be read at www.nationalactionnetwork.net