The last few days have seen extraordinary scenes in the House of Representatives.
Arab-American Republican Congressman Justin Amash, who at the age of 33 should have almost zero influence in the House, brought forward an amendment to ensure that the government’s collection of records under Section 215 of the Patriot Act is limited to those records that pertain to a person who is subject to an investigation under that provision.
Sounds small? It is, in fact, titanic.
Let’s remember for a moment how the PATRIOT Act passed, six weeks after 9/11 by a panicked Congress, with only one valiant Senator (Russ Feingold, D-WI) and 66 mostly Democratic House members opposing it. Congressmembers had no time to read it before voting on it, and most of its components had already been drafted before 9/11, waiting for a suitable crisis for them to be pushed through.
Section 215 of the Patriot Act authorized the government to collect “any tangible things” that are “relevant” to an investigation. At the time, the main worry from civil liberties folks was that it could be interpreted to allow investigators to gather the library records of suspects. That was a valid suspicion, but how Section 215 came to be interpreted was much broader than that. First, the Bush Administration secretly and illegally started collecting metadata on a mass basis. Then, some time after 2005, the secret Foreign Intelligence Surveillance Court secretly reinterpreted Section 215 as retroactively providing a legal basis for the collection of metadata on all Americans’ phone calls. All calls were now deemed “relevant” to the investigation of any suspect. Then, in June of 2013, the Snowden revelations made that fact public.
You might ask, if all calls are relevant, what is not relevant?
The idea here is that the value of the metadata collected depends on its completeness, because the algorithms analyzing it rely on it being a complete set. It’s much more problematic mathematically to analyze communications metadata probabilistically if the data set consists of an unrepresentative subset of all communications. Because of this, the Obama administration has disclosed that the same secret court has renewed again the orders requiring phone companies to disclose all metadata to the NSA. However, the completeness of the database means that for legal purposes, two Tulsa grandmothers chatting about their corns is being deemed “relevant” to investigations of terrorism.
That would seem to violate the Fourth Amendment‘s particularity requirements, which require, before information constituting a person’s papers or effects is seized, probable cause that what is being seized is evidence of actual or planned criminal activity by the person concerned.
The administration argues, with some support from the Supreme Court’s 1976 ruling in Smith v. Maryland, that metadata is not covered by the Fourth Amendment. If you were executing an old-fashioned pen register/trap and trace warrant on a single landline, then information on where the call was made, what numbers were called or called you, and how long the calls lasted, simply didn’t disclose very much about you or your activities, so in the technological context of the day it was more reasonable to deem that metadata not personal enough to require a warrant for its collection. What we’re talking about now is something qualitatively different. Many people, and especially suspects, are likely to use cellphones, and the location of a cellphone discloses much more about your activities, including potentially embarrassing or incriminating information. Systematizing all metadata into a database and applying algorithms to it to disclose the pattern of everyone’s contacts was not possible or even envisioned at the time the Supreme Court last ruled. We are now in an age where the pattern of people’s metadata may be more informative to law enforcement even than the content of your calls.
Rep. Amash introduced this measure as an amendment to the normally bulletproof defense appropriations bill. Remarkably, it was allowed to come up on the floor for debate, producing the first ever floor debate since 9/11 on the NSA’s mass collection of metadata.
The White House, frankly, panicked. They issued an angry response, claiming that
“This blunt approach is not the product of an informed, open, or deliberative process.”
– unlike, I suppose, the informed, open and deliberative process whereby mass metadata collection began?
Rapidly, the White House sent the head of the NSA, General Keith B. Alexander, to provide secret, members-only, two-hour briefings to Democrats and then Republicans on why this amendment had to fail. The leadership of both parties whipped furiously against it. Last night, the vote was held, and by 207-213, it did fail; but not before a remarkably large coalition of liberal Democrats and libertarian Republicans had formed to oppose it.
To put this in context, I am aware of no previous vote in the House since 9/11 where more than 25% of it was on the side of reining in the surveillance state. This was an amazingly stronger showing than has been seen before. A majority of House Democrats bucked the leadership of their own party and the Democratic President ardently opposing it, to go on record in defense of the privacy of ordinary citizens, including such long-time and deeply respected senior figures as Rep. John Conyers and Rep. John Lewis. 93 of the usually more authoritarian House Republican caucus voted for the amendment. It was such a strong and unexpected vote that it may even require the deep state to toss a bone to the friends of freedom this fall, when the intelligence bills come up on the House floor.
We can draw important lessons from this episode.
The first is that this amendment actually worried the NSA. If the NSA were content merely to violate the law in secret, then nothing the House passed would matter in the slightest; so, score 0.05 for the rule of law. General Alexander must clearly have felt that the NSA’s metadata program would have actually had to change and limit itself in some way if this amendment passed into law. It often feels to surveillance activists as if dictatorship is already here:
This episode suggests that while it may be on its way, it is not yet here, and can still be stopped.
The second lesson is that on surveillance issues, the left and the right can genuinely make common ground. This amendment would not have gotten as far as it did without Rep. Conyers’ mobilization of the Congressional Progressive Caucus and Rep. Amash’s mobilization of and far beyond the Liberty Caucus. It’s obvious that libertarians are not natural partners for liberals in fights over healthcare or affordable housing. But it should be possible, both locally and nationally, for left and right to work together on specific issues where both sincerely believe in the same change.