Page 147 - Privacy in a Cyber Age Policy and Practice

BALANCING NATIONAL SECURITY AND INDIVIDUAL RIGHTS 135

General searches were further legitimized by Section 215 of the Patriot
Act and the national security letters that the law authorizes. This legislation
allows the government to conduct surveillance without first identifying
an individual as a suspected terrorist and also grants the government the
authority to search through third-party databases without notifying sus-
pects as long as the “information is relevant to a terrorism investigation.” 104
Specifically, Section 215 of the Patriot Act stripped the business records
provision provided in the Foreign Intelligence Surveillance Act (FISA;
1978) of the requirement that any requests for such records must involve
“specific and articulable facts” if these records pertain to “a foreign power
or an agent of a foreign power.” 105 However, it provides communications
providers with an option for judicial review whereby they might contest
the legality of a records request and any associated nondisclosure orders. 106
Section 215 has been cited in a ruling by a Foreign Intelligence Surveil-
lance court as upholding the legality of the NSA’s phone records collection
program. 107 Section 215 also prohibits the collection of records for an
investigation based solely on the basis of a protected First Amendment
activity. A U.S. person cannot be the subject of NSA surveillance simply
because of what that person says or believes. 108 No evidence has been pre-
sented, even following all the leaks, that this section has been violated by
the NSA, in contrast to reports that the IRS has targeted Tea Party groups.
Most important and often ignored by critics is the fact that the phone
surveillance program does follow the Fourth Amendment rule of par-
ticularized search. Although the government collects and stores phone
records, an individual’s calls cannot legally be scrutinized until it has been
established that there are “facts giving rise to a reasonable articulable
suspicion” that the number to be searched is associated with a foreign ter-
rorist organization. 109 The basis for that suspicion has to be documented in
writing and approved by one of twenty-two highly vetted NSA officers. 110
Far from granting many such searches, in 2012, fewer than three hundred
proposed searches met the “reasonable, articulable suspicion” standard. 111
In November 2014, the USA Freedom Act, which proposed to amend
Second 215 and end the bulk collection of metadata of phone calls made
by U.S. citizens, was narrowly voted down in the Senate. 112 Moreover, even
if Congress allows Section 215 to expire in June 2015, the government may
still maintain its authority to collect phone records through an exception
in the Patriot Act. 113
In short, given that phone surveillance does not violate the Constitution
or statutory law and that its intrusiveness is low, it should be tolerated. (The
term “tolerated” is used to remind the reader that one need not be enam-
ored of such programs in order to consider them necessary and legitimate.)
Given this cardinal observation, the question comes down to whether