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When security actions become unconstitutional snooping

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Fred Cate still has his button that reads, “Another Hysterical Librarian.”

The message invokes a remark made by former U.S. Attorney General John Ashcroft when the USA Patriot Act of 2001 was first being debated in Congress. One major concern was that the government would be able to access private individuals’ reading records from public libraries, and Ashcroft’s irreverent quip became a rallying cry.
 

fredcate02-15col.jpg Indiana University Maurer School of Law professor Fred Cate is one of the country’s leading experts in privacy and security laws. (IL Photo/ Aaron P. Bernstein)

Twelve years after the passage of the Patriot Act, Americans are learning the surveillance is much broader than anyone ever imagined. Classified information released by National Security Administration whistleblower Edward Snowden earlier this year revealed the federal government had expanded its program from watching suspected terrorists to spying on foreign nationals, foreign heads of state and domestic citizens.

“We’d be happy if it was just librarians,” Cate said.

The Indiana University Maurer School of Law professor and director of the IU Center for Applied Cybersecurity Research has had a front row seat to the debate between protection against terrorism and privacy rights of individuals. His service on a standing cybersecurity committee with the Department of Homeland Security and with the Defense Advanced Research Projects Agency at the Department of Defense have given him access to classified information and a deeper look into the government’s surveillance activities.

Still, he was shocked not only by what Snowden disclosed but also that Snowden, as an employee at a defense contractor, had access to such high-level information.

Even with the passage of the Patriot Act in the weeks after the Sept. 11 terrorist attacks, no one expected the government would cross the line of conducting surveillance on U.S. citizens. Cate thought the executive branch might overreach at times but only in special circumstances.

However, the so-called “Snowden flakes” have opened a pathway to challenging what the government has been doing. Cate, along with IU Maurer professor David Fidler, has now joined an effort to use this pathway to nudge the Supreme Court of the United States to start reigning in the secret surveillance program.

Cate was the lead author of an amicus curiae brief (signed by Fidler and 12 other professors from universities around the country) in support of a petition asking the nation’s highest court to take the extraordinary step of issuing a writ of mandamus and vacate a previously secret order for the collection of domestic telephone records.

If the Supreme Court acts, Cate said, it would indicate the court thinks the situation is severe enough to get involved. It would send a signal that the government is not free to do anything it wants.

‘Telephony metadata’

Among the documents Snowden unveiled was an April 2013 order by the Foreign Intelligence Surveillance Court compelling Verizon Business Network Services Inc. to turn over daily phone records of calls made from the United States to foreign countries as well as totally within the continental borders.
 

 

fidler-david-mug Fidler

Under terms of the federal law, the activities of FISC are secret and never brought to the public’s attention. The collection of “telephony metadata” on all of Verizon’s nearly 100 million customers who are not directly connected to any specific investigation is viewed as stepping well outside the power granted by the Patriot Act.

“It boggles the mind to understand how this is possible,” Fidler said.

The disclosure of the Verizon order gave the Electronic Privacy Information Center an avenue to bring a judicial challenge. In July, EPIC submitted a petition asking the Supreme Court to grant a writ of mandamus and vacate the order as well as prohibit such future orders.

EPIC, a public-interest research center focusing on privacy and civil liberties, argued it has the ability to challenge the order because it is a Verizon customer. Since the Foreign Intelligence Surveillance Act was drafted specifically to bar outside individuals and organizations from seeking a review of any order, EPIC asserted it can only obtain relief with a writ of mandamus from the Supreme Court.

Marc Rotenberg, executive director of EPIC, acknowledged while the court has the power to act on the petition, it traditionally has not deployed that authority. But, he said, if ever there was a writ of mandamus petition the Supreme Court should consider, this is it.

Writing the amicus brief was not a labor of love, Cate said. He wanted to push the court to act, in part, because of the work he and other professors have done for the government. As citizens and scholars, he and his colleagues were misled and had their good will taken advantage of, he said.

“The First Amendment concerns are real and substantial,” Cate wrote in the brief. “Although not including the content of communications, the call detail records and telephony metadata of millions of U.S. persons disclosed under the Verizon Order can be highly revealing in ways that may be intrinsically harmful or chill the exercise of protected liberties.”

While the chance of the Supreme Court granting the writ is uncertain, Rotenberg said Cate’s participation will draw the court’s attention as he is “one of the leading experts on surveillance law in the nation.”

Needles in haystacks

Ironically, while the federal government maintains its covert surveillance is keeping the country safe, Cate sees the actions as actually posing a danger to national security and personal privacy.

The National Security Administration is collecting such a vast amount of data, but it is not analyzing the data or, as Cate said, connecting the dots. Even though the NSA has maintained it needs to have a lot of data to find the threat, only a small part of the “black budget” that covers the national intelligence program is spent on data analysis, he said.

Using the government’s analogy of needing more hay to find needles, Cate argued that adding more hay, or data, does not improve the chances of finding a terrorist. Rather than adding more hay, he said, the government really needs a mechanism to find needles.

Fidler pointed out just a few years ago the collection of metadata from all phone calls was not plausible. Now, once again, advances in technology have outpaced the language of the law.

Each innovation sparks a more expansive reading of what is allowed by law. This is going to be a constant source of friction in American democracy in the foreseeable future, Fidler said, which will require a return to debate time and time again.

Rather than trying to put the genie back in the bottle, he said, society should build a new bottle. The country should look for smarter ways to protect itself that are not unconstitutional.

Neither Cate nor Fidler believe the surveillance activities, known to date, are threatening the very foundation of the United States. The current situation is nothing like the risk to democracy brought by the Civil War.

Yet, the revelations have diminished the country’s standing in the world, the Maurer professors said. The U.S. reputation as being a beacon of freedom has been dimmed. Now the world sees the country as a violator of democracy and liberty.

Closer to home there is anger and disappointment. Over the summer, every time the White House issued a denial, Snowden would release contradicting information. The activities of the NSA reached far beyond what Congress and the public had ever been told.

Cate said he is most disheartened that the president did nothing to stop the lying.•

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  • Great article
    Very interesting read..."another hysterical librarian" indeed...will be interesting to see how this develops...thanks for the story IL, and good luck Mr. Cate.

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  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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