Soon after leaks on NSA surveillance, Jimmy Fallon joked: "A report found that the government has been secretly collecting the phone records of Verizon customers. I knew something was up when I said, 'You hang up first.' Then my wife said, 'No, YOU hang up first!' Then Obama said, 'Uh, how about you just hang up at the same time?'"
It's now pretty common to hear a joke about the NSA watching you. As a law student, I have researched privacy invasions due to national security concerns, including TSA screenings and NYPD spying on Muslim students. Nothing prepared me for the NSA's blanket surveillance. Email accounts, 200 million text messages a day, and even video games have not been safe from government spying.
Given on the Friday before the holiday weekend, President Obama's speech on NSA reforms entered and left the limelight pretty quickly. But Americans should be concerned that the reforms might leave us worse off than before, and that some of our key questions on the surveillance remain unanswered by the president and Congress.
The history lesson he offered in the beginning is indicative. He sidestepped the Founding Fathers' concerns for privacy and focused on a Revolutionary Era "secret surveillance committee" that predated our Constitution and indeed, the founding of our nation. However, he acknowledged, such surveillance has and can be abused (see the timely MLK example). Technology has made it easier for this to happen. The balance between security and liberty is a complicated subject, he explained.
True, but we have guidelines to follow for issues like this. As the president stated, "For more than two centuries, our Constitution has weathered every type of change because we have been willing to defend it." Yet the Constitution got short shrift in the speech -- the Fourth Amendment was not even mentioned.
Judge Richard J. Leon of the U.S. District Court for D.C. recently held that the NSA's metadata program likely violates the Fourth Amendment, protection against unreasonable search and seizure. The telephone metadata program is based on Section 215 of Congress's Patriot Act, which President Obama acknowledges has "generated the most controversy." "I cannot imagine a more 'indiscriminate' and 'arbitrary invasion' than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval," Judge Leon wrote.
The Fourth Amendment is one of the most important checks on the executive. Police and other law enforcement regularly arrange their procedures around the Constitution. Now, Americans are concerned about the NSA's collection of their most personal information when, let's face it, most of us are not criminals or terrorists. We're not just worried about the NSA listening in on our gossip. Like our Founding Fathers, we're concerned about an unchecked government agency that can listen to all of our phone calls and emails remotely, without any way for us to ever know what was taken, where it was stored, and what it will be used for.
President Obama's supposed plan to change the way the NSA spies is an insult to the American people's intelligence. His solution is that from now on, the government will no longer store telephone metadata, but someone else will. He doesn't know who yet. But if the changes are being made because we don't believe the government should hold this information, why would a private entity do a better job? And how is this an improvement if the government will be able to access the information from this entity anyway? It doesn't matter which door you go through if you get to the same place.
During the transition period to this new program, intelligence agencies can only pursue phone calls that are two steps removed from a number associated with a terrorist group, not three -- a positive development. Also during this transition, these agencies must apply to the Foreign Intelligence Surveillance Act Court for approval to access Americans' telephone records. While President Obama is now calling for the establishment of an independent advocate in "significant cases" before the secret FISA Court, it currently only hears from the government. Not surprisingly, the FISA Court has approved 99 percent of government requests for FISA warrants.
The reliance on the FISA courts in NSA reforms raises the broader questions: Why do we still have this secret court? Why should Chief Justice John Roberts, who has a specific view on national security and civil liberties, have been able to select all of the current judges on this Court?
In breaching our privacy, the NSA has lost our trust. The Director of National Intelligence, James Clapper, lied under oath to Congress that the NSA had no metadata collection program, and even admitted later he did so. Keith Alexander, the director of the NSA, did the same. Congress is not immune either -- Intelligence Committee heads Dianne Feinstein and Mike Rogers have staunchly supported the NSA surveillance program. The Congress-created FISA Court, a key player in the president's solution, has also done little to protect our interests and instead we must hope that an independent advocate -- in select cases -- will do so. Shouldn't Congress, the president, and our intelligence agencies be protecting our interests when creating these programs?
President Obama, you were once admired by a large majority of this country, and it was not just because of the way you said things in your speeches. It was the ideas you presented in them. You were once a proponent for civil liberties, and that's interestingly when you were more liked by the American people.
Let's not get blindsided into another program that gives us an out-of-bounds surveillance program. Let's hold our politicians accountable.