Scott Forsyth, The Daily Record Newswire
We now know the government has been collecting information about our cell phone and land line usage for seven years and maybe longer. The information, called metadata, includes all of the numbers dialed, the length of the calls, and the location of the calls. Verizon, AT&T and Sprint have been turning over the information pursuant to a series of orders issued by the Foreign Intelligence Surveillance Court (FISC).
The president assures us he is not listening to the contents of the calls. He does not have to, because from the metadata he can paint an alarmingly detailed picture of Americans’ private lives.
Like a GPS device, metadata reveals contacts with “the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar, and on and on.” This reach prompted the New York Court of Appeals to declare GPS surveillance to be a search needing a warrant, People v.
Weaver, 12 N.Y.3d 433, 441-442 (2009).
The president also assures us his surveillance program is perfectly legal, citing the FISC orders. That contention may not hold up.
The orders are based on Section 215 of the Patriot Act, 50 U.S.C. § 1861. Congress originally enacted Section 215 in 1998, to allow the FBI to seek an order to obtain the business records of hotels and vehicle rental agencies in the course of investigating “a foreign power or an agent of a foreign power.”
In 2001, Congress expanded the scope of Section 215. It dropped the types of businesses. It changed “records” to “any tangible things (including books, records, papers, documents, and other items.)” The things need only be “relevant” to an investigation “to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism.”
All sorts of questions immediately arise. Is past telephone usage a tangible thing? Is metadata, which does not include the content of the calls, a tangible thing?
The FISC orders require the carriers to turnover information about future use, but these records are not in existence at the time the orders are signed. How can the court do this?
How can the call information of all Americans be relevant to a foreign-intelligence or terrorism investigation? Has FISC been exceeding its statutory authority in issuing the orders?
Actually, FISC has rendered a series of opinions in support of its and presumably the government’s interpretation of Section 215. I say presumably, because the court has not seen fit to release any of the opinions, in whole or in part.
While the proceedings in FISC are secret, the court’s rules permit it to publish its opinions on any matter. On June 10, the ACLU filed a motion with the court arguing the First Amendment compels the court to release its Section 215 opinions in redacted form.
The public has a qualified right of access to judicial proceedings and records, a right that is “firmly rooted in our nation’s history.” The right attaches where 1) the types of judicial proceedings and records have been historically available to the public and 2) public access plays a “significant positive role” in the functioning of those proceedings, Press-Enter. Co. v. Superior Court, 478 U.S. 1 (1986).
Here the type of record being sought is opinions interpreting a public statute. Historically and nationally, courts regularly publish such opinions. The fact that a single court, FISC, does not give the public access to its proceedings is not controlling.
Public access to opinions promotes confidence in the judicial system by allowing the public to evaluate for itself the operation of the courts. “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing,” Id., at 13.
The president has welcomed a debate on the value of his surveillance program. One of the checks on the program, he claims, is the role of FISC. Therefore, that debate and the public in general will benefit from knowing what FISC thinks about Section 215.
Since FISC’s unwillingness to date to release the Section 215 opinions implicates the First Amendment, its denial must satisfy strict scrutiny. Protecting intelligence sources and methods may be a compelling governmental interest. However, FISC can always redact the opinions and still achieve this purpose. Denying any release is not “narrowly tailored to serve that interest.”
The ACLU happens to be a customer of Verizon. The day after it filed the motion it commenced a lawsuit charging the collection of its metadata to be outside the scope of Section 215 and a violation of the First and Fourth Amendments.
The ACLU talks to clients, prospective clients, policy makers and members all of the time by phone. The possibility the government can identify a particular caller will chill the speech of the caller and the organization.
With the motion and the lawsuit we will see if the president, a former law professor, is correct about the legality of his surveillance program.
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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.
