NSA metadata system’s constitutional debate not black and white

WASHINGTON — On Capitol Hill, the debate over the constitutionality of the National Security Agency’s bulk collection of Americans’ phone records rages on.
Despite the recent declassification of a top-secret Foreign Intelligence Surveillance Court ruling from Aug. 29 that decided that the metadata system is constitutional, the Senate Judiciary Committee called in legal experts to debate the issue last week.

Two Georgetown law professors squared off before the panel, giving different perspectives about whether the data collection is reasonable, relevant and legal.

Reasonable expectation of privacy

Professor Laura Donohue argued that the bulk collection of citizens’ metadata is both illegal and unconstitutional in its interpretation of the Fourth Amendment, which protects against “unreasonable searches and seizures.”

She sought to refute the FISA court’s ruling that the Fourth Amendment question was irrelevant when individuals have no reasonable expectation of privacy in metadata. Donohue said citizens do have privacy expectations that NSA’s collection system ignores.

Donohue mentioned a 2012 Supreme Court case dealing with the use of GPS tracking devices in police investigations. In the opinion, Justice Antonin Scalia said that “at minimum, the 18th Century guarantee against unreasonable search and seizure must provide the degree of protection it afforded when it was adopted.”

Donohue said the program allows for unjustified warrants and an arbitrary collection of information from American citizens. She also disagreed with the use of “relevant” as it is used to determine which records are searched, as well as other statutory issues.

Donohue argued that the “use of relevant is so absurd as to render the use of statutory language irrelevant.”

In the August ruling, the FISA court said Congress decided to leave the key term “relevant” undefined. The court document also stated that the definition of relevance was interpreted broadly and held to a “relatively low standard.”

“I don’t want to see us go backwards”

On the opposing side, another Georgetown law professor argued that proposals to change the law concerning the metadata system have gone too far and threaten national security.

“In the years leading up to and following 9/11, the FISA court was subject to the exact opposite criticism that it’s receiving today,” Professor Carrie Cordero said. “It was criticized of being too cautious, too unwilling to be aggressive under the law to protect matters of national security.”

Cordero urged the committee to use caution in considering quick fixes that sound appealing but that she believes could have lasting negative consequences.

She said arguments maintaining that the system is unconstitutional are based on misinterpretations of the law.

Cordero also suggested that adding a public interest advocate to the FISA court process would not increase public confidence, since the advocate would be part of the secretive court process that the public could not see.

“Very, very gray”

National security attorney Mark Zaid said in a telephone interview that the issue of the system’s constitutionality is not black and white, but instead “very, very gray.”

“As far as I can see, the programs are constitutional unless you can demonstrate how policy and practice of abuse is present,” Zaid said Monday.

He cautioned that the uncovering of abuses doesn’t necessarily deem the system unconstitutional, but rather subject to policy changes.

Without Supreme Court action, Zaid said he doubted that much about the metadata system will change.

“It’s very easy to drop a bill into the process but it’s a totally different story to have that bill go through hearings, a different story to have it voted on, and a different story to have it enacted,” Zaid said.

The Senate Intelligence Committee has scheduled a markup of Sen. Dianne Feinstein’s bill for Thursday. Feinstein’s wants to make changes in the metadata system, including a call for more statistics showing the number of calls searched and analyzed by NSA.