Our Lost Constitution by Mike Lee

Author:Mike Lee
Language: eng
Format: epub
Publisher: Penguin Group, USA
Published: 2015-03-23T04:00:00+00:00

An “Indiscriminate and Arbitrary Invasion”

Less than three months later, the world learned the shocking truth. Since as far back as late 2001, the federal government has required mobile telephone companies to turn over to the NSA their customers’ call records. The vast majority of these records relate to purely domestic calls in which both participants are located in the United States. The records include every number each customer called, the numbers of everyone who called the customer, the time of day that every call occurred, and the duration of every call. The NSA compiles these records and retains them for up to five years.

Hundreds of millions of Americans have therefore had their calling data collected by the NSA not because they have made phone calls to suspected terrorists but simply because they have . . . well . . . made phone calls. It is important to keep in mind that the overwhelming majority of them have committed no crime and have otherwise done nothing to raise the suspicions of those charged with protecting the United States from attack. Nevertheless, federal authorities have interpreted a section of the PATRIOT Act to authorize the NSA and the FBI to obtain what some might consider the information-age equivalent of a general warrant, enabling government agents to search though the phone records of hundreds of millions of innocent Americans. The act says the government can ask a specialized tribunal called the Foreign Intelligence Surveillance Court, which meets in secret and which hears only from the government, to order companies like Verizon to turn over records if the records are “relevant” for “an investigation . . . to protect against international terrorism.”34

If you think the NSA doesn’t consider your phone records “relevant” to a terrorism investigation, think again.

Here’s what the FISA Court secretly authorized the NSA to do. First, it may collect—and we now know that it has in fact collected—hundreds of millions of phone records, which it then retains in a massive database. Second, it may search for a phone number with a suspected connection to terrorism. Third, it may look at every number the suspect’s number called and every number from which it received calls. Fourth, it may look at every number that those numbers called and from which they received calls. And finally, it may take all those numbers and poke around—trying to learn anything it can that might help in an investigation.

A federal judge recently illustrated the extent of this multiple-degrees-of-separation searching.35 Imagine that the NSA finds the number (123) 456-7890 suspicious. Now imagine that (123) 456-7890 called, or was called by, one hundred numbers over five years—an exceptionally conservative estimate. Next imagine that each of those one hundred numbers called or was called by one hundred other numbers.

If you have one of the ten thousand phone numbers in this single query, the NSA may have deemed itself authorized to collect and potentially analyze every number you called and every number that called you, as well as the time, date, and duration of your every call.

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