PRISM Does NOT Violate the Fourth Amendment, No Matter What Oliver Stone Says.

The overwrought nature of the concern over the NSA surveillance activities that were supposedly “uncovered” by Edward Snowden is alternately hilarious and frightening, and it is severely misplaced. It is highly cynical and either displays an extreme level of ignorance or, if we’re to look at it a bit cynically, it’s being used to exploit the ignorance of others. It’s actually probably a little bit of both. For example, check out this video from the ACLU featuring Oliver Stone that I stumbled across this morning:

Is PRISM actually a violation of our Fourth Amendment rights? Is the NSA really doing something that puts us or our rights in danger? Now, obviously, given our history, such a thing is not unprecedented, and it is possible. They have spied on us in the past. But based on the information provided by Edward Snowden and other available information, the answer right now is a resounding “no.”

First, let’s start by actually reading the Fourth Amendment, since many of those who wax eloquent about it (like Oliver Stone) seem to have no idea what it says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (emphasis added)

Note the adjective in bold. What is “unreasonable.” PRISM doesn’t seize anything. Via warrants (that word is in there, too), they are requesting information from phone and Internet companies and getting it. That information doesn’t actually belong to you. The content of the phone calls and emails are private, but you are accessing the people on the other end using equipment owned by someone else. The only thing you technically own is the phone. At most, the NSA performs something of a search function, but is it unreasonable? Given that it’s the functional equivalent of a video camera scanning the crowd at Times Square on New Years Eve, IF Times Square could hold 300 million people, how “unreasonable” could it possibly be? Is the contents of the call to Aunt Bessie to find out about Uncle Phil private? Absolutely. But is the physical electronic connection between 213-555-1212 and 415-555-8765 really private? That’s pretty difficult to claim.

You probably use Google or Bing on a daily basis. Have you ever considered what a search engine does? Basically, it “crawls” through every single website on the Internet to find those most relevant to the search you made. Even though you only see the results, the search engine saw single website. Even if your site is password-protected, you consider the information private and include some code in your site that tells the Google bots to skip it, Google still has to crawl your site to find that code. Is that an invasion of privacy?

This is the functional equivalent of what the NSA’s computer software does. They only have metadata; that means anonymous information. Okay, I suppose if your email address is (your.name @ISP), they could figure stuff out. But they won’t see the email address unless you emailed a suspected or known terrorist or other bad guy. They do NOT have names, addresses or content. An NSA analyst gets hold of a phone number connected to a bad guy, runs it through their database, and the only thing that analyst sees are the matches. And even then, the analyst doesn’t get any identifying information without obtaining a warrant,  which they can only get by demonstrating probable cause to a FISA court. Read the Fourth Amendment again; it’s not violative at all, based on anything Snowden has revealed to us. Is it possible they are violating the law? Sure. But there’s no evidence here.

A lot of hay has been made about the FISA court being “secret,” which is kind of funny. Everything that happens in court is secret until you look it up. Also, judges make decisions every day that are sealed for a variety of reasons, that no one ever sees. It’s not like you are entitled to see everything a court does. Therefore, if you’re going to use your lack of knowledge as a guide as to what’s “secret,” you’re already logically challenged going in. Yes, FISA is secret, because publishing the content of every subpoena would mean bad guys could just change tactics and blow people up somewhere else. Is that worth it to you? If terrorists blow up another marathon and kill dozens because hamstring the NSA with a paranoid notion that the ten digits of our phone number or our IP address are somehow sacred, how is that “reasonable”? 

When I make an argument like that, these folks will usually break out the Benjamin Franklin quote:

“They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.” (emphasis added)

Again, they will miss the adjective, “essential.” Even a relative free spirit like Ben Franklin qualified the word “liberty.” Claiming that your phone number or IP information, when not attached to your name, qualifies as an “essential liberty” is probably stretching a bit. Ever hear of a phone book? And expecting total privacy as you surf the web is the functional equivalent of running down the Interstate naked and demanding privacy. Next time you go to a website, look at the ads, and notice how many of them are for websites you’ve recently visited. Doesn’t that seem strangely coincidental? Everything you do and everywhere you go on the Internet leaves a footprint. Have you ever wondered by you have to log in at those places offering free wifi, even if you don’t have to give them your email? It’s because they’re tracking you. Not for any nefarious reason, but just in case you’re participating in something illegal, they can tell authorities when your computer signed in, and when activity stopped. There is little to no privacy on the Internet; it’s a very public place. If you don’t want to be seen, you have to disguise yourself; it’s not automatic.

Also, PRISM is not secret. The details of the surveillance are secret, but its existence is most certainly not. And the NSA has very strict parameters wherein they can work. They are forbidden to target anyone within the United States. If you don’t believe me, then read the FISA law that many of us advocated for from 2006-2008, after we found out Bush was conducting such a program without oversight. We demanded the oversight, remember?

Section 702 sets out the NSA restrictions:

[The N.S.A.] (1) may not intentionally target any person known at the time of acquisition to be located in the United States; (2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;
 (3) may not intentionally target a United States person reasonably believed to be located outside the United States; (4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and
 (5) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.

Put simply, this fantasy of the NSA using our phone numbers and IP activity to round us all up into camps is absurd. The NSA is staffed with civil servants who went through a security screen that 90% of those people imagining black ops couldn’t pass. Note the invocation of the Fourth Amendment in the law. See that? In order to get past a FISA court, the NSA has to comply with all of the above restrictions. And while many folks seem to view the fact that FISA hasn’t rejected any subpoenas as a negative, you should see it as a positive; it means the NSA is following the rules, and not trying to bend them. And there is absolutely no point in FISA allowing the NSA to violate the law, since such a thing would eventually fail in the courts. It’s not possible to convict anyone based on illegally obtained evidence. I suppose they could “disappear” you, but unless you have evidence of that happening, save it.

PRISM is also overseen by Congress. The NSA briefs Congress on the results of their surveillance on a regular basis. And the Congresspersons who are briefed run the gamut, ideologically; they are not all right wing hawks.

Finally, if you want to understand the details of how PRISM is conducted, don’t go to a film director who thinks everyone killed JFK. Instead, go to a journalist who has studied this stuff and written about it extensively, and who was instrumental in demonstrating the problems with the Bush surveillance plan, Kurt Eichenwald. Read the brilliant piece he posted at Vanity Fair last month, and you’ll find out that the paranoid fantasies of some of these doomsayers are just completely off the wall.

It’s a fact that people want to kill Americans. It’s also a fact that the Constitution charges the government with the duty of protecting us. There are lines they shouldn’t cross when it comes to privacy. But nothing in any of Snowden’s disclosures indicates that they have crossed any kind of line. In fact, it’s the opposite.

Is it “whistleblowing” to advise everyone that the government is following the law?