The Fourth Amendment to the U.S. Constitution reads:
"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."
Contrast this language with the terms of the recent "compromise" legislation governing warrantless surveillance of Americans' electronic communications that Congress is set to approve. The bill amending the Foreign Intelligence Surveillance Act (FISA) gives the U.S. National Security Agency—the world's largest intelligence agency—carte blanche to engage in wholesale "data mining" of e-mail communications, telephone calls, faxes, etc. And there's absolutely no requirement that the government describe "the place to be searched, and the persons or things to be seized."
Instead, the NSA's "Terrorist Surveillance Program" (TSP) appears to rely on mining the data streams of U.S. telecommunications companies to analyze transactional records of telephone and e-mail traffic in search of patterns that might point to terrorist suspects. In other words, are you—or anyone else in the United States—acting in a way that merits eavesdropping?
If you match one of these profiles, the NSA apparently assigns a human analyst to listen in on your telephone calls and read your e-mail. Again, there's no warrant required. This apparently happens tens of thousands of times annually. Most of the time, the NSA doesn't find anything suspicious. Perhaps a few thousand times each year, the NSA passes on information to domestic law enforcement agencies, but most of inquiries drop out due to lack of evidence. Only a handful of inquiries—fewer than 10 annually—merit a full investigation.
What about a warrant backed by probable cause? Apparently, only in those 10 or so cases that merit a full investigation does the FBI obtain a search warrant or domestic wiretap warrant.
The only role of the courts under the new FISA law is to approve the computer algorithms the NSA uses to decide which messages merit further investigation. That decision is in the hands of the secret court set up 30 years ago to oversee wiretaps in national security investigations. In its 30-year history, this "Foreign Intelligence Surveillance Court" has turned down only a handful of NSA surveillance requests. But now, its role will simply be to rubber-stamp the explanation by a NSA technician of what a particular algorithm purportedly accomplishes.
Nor is there any assurance that the program is limited to terrorist investigations. There's an obvious potential for politically motivated surveillance here. Already, evidence has emerged that the government uses the TSP to fight drug smuggling.
What stops the NSA from using this authority, e.g., to snoop on political opponents of the ruling party? Only judges technically savvy enough to really understand the mathematical underpinnings of the NSA algorithms they're asked to approve. How many judges do you think have the technical background to do that?
The remainder of the law is a joke, although I'm not laughing. It grants retroactive immunity to the telecom companies that cooperated with NSA eavesdropping after the attacks of Sept. 11, 2001. It also stipulates that the government must use FISA and the criminal wiretap laws as the exclusive means to conduct electronic surveillance. Of course, this is the provision of the FISA law that President George W. Bush unilaterally decided to ignore when he approved the original Terrorist Surveillance Program shortly after Sept. 11, 2001.
The bottom line: the FISA amendments shift the decisions about which U.S. citizens to spy on from the courts to virtual priesthood of NSA technicians operating in secret and creating surveillance algorithms that only they understand.
It's hardly an oversight to state that this type of wholesale surveillance makes the Fourth Amendment a quaint anachronism.
Goodbye, Fourth Amendment.
Copyright © 2008 by Mark Nestmann
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