Page 143 - Privacy in a Cyber Age Policy and Practice

BALANCING NATIONAL SECURITY AND INDIVIDUAL RIGHTS 131

cumbersome, and unreliable means of communication and command,
and which in effect prevented bin Laden from serving as an effective
commander-in-chief of al Qaeda. Moreover, once the CIA deduced that
using a messenger was the only way left for him to communicate, tracking
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the messenger led to bin Laden’s downfall. Additional reports that there
was a sharp decline in al Qaeda’s electronic communications following the
revelation that the United States had intercepted the communications of
Ayman al-Zawahri also proved that the NSA programs forced terrorists to
limit their communications.
In short, we have seen that terrorism still poses a serious threat to
national security; that terrorists cannot be handled like other criminals,
and distinct measures must employed to handle them; and that surveillance
programs like PRISM and the phone surveillance program significantly
contribute to curbing terrorism. In short these programs do enhance one
core element of the liberal communitarian balance. Section C addresses the
extent to which they undermine the other core element.

C. Phone Surveillance of Americans

The NSA’s phone surveillance program involves the bulk collection of
metadata from major telephone providers. These records, which are col-
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lected from at least three major phone companies, include the numbers
dialed by Americans and the duration of each call, but not the content of
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the calls. (This is distinct from the bulk collection of billions of cell phone
locations globally, which was revealed in December 2013 and which col-
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lects data on U.S. cell phones only incidentally.) Experts have said that the
phone surveillance program violates individual rights on several different
grounds.

1. Third-Party Doctrine

The collection of phone records has been justified on the basis of the third-
party doctrine. It holds that once a person voluntarily discloses a fact to
another party, he or she forfeits all Fourth Amendment protection when it
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comes to the disclosed information. Relevant cases include United States
v. Miller (1976), in which the Supreme Court ruled that bank depositors
forfeit their reasonable expectation of privacy when they hand over per-
sonal information to a bank. Moreover, sharing such information with a
third party necessarily entails the risk that the third party might voluntarily
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turn over the information to the government. And in Smith v. Maryland
(1979) the Court held that the voluntary disclosure of information to