ACLU Blog of Rights

Noa Yachot

An impressive array of organizations and individuals filed amicus briefs yesterday in support of the ACLU's constitutional challenge to the government's collection of the call records of virtually everyone in the United States. The range of voices joining the protest against mass government surveillance-not to mention the bipartisan storm that has swept Congress since the recent NSA disclosures - is a real testament to the fact that the government's dragnet surveillance practices are offensive to Americans from across the political spectrum.

Among the groups supporting our lawsuit are the National Rifle Association, the Reporters Committee for Freedom of the Press, and the PEN American Center. Philosophy Professor Michael Lynch submitted a brief arguing that privacy is fundamental to human dignity. Our friends at the Electronic Frontier Foundation submitted a brief on behalf of Rep. Jim Sensenbrenner (R-Wis.), one of the authors of the Patriot Act. Rep. Sensenbrenner has decried the now-public call-records program as outside the scope of the law he authored. He reiterated that point in his brief:

"The Defendants attempt to justify their practice of collecting the records of every telephone call made to or from the United States, including purely domestic calls, by claiming that Congress intended to authorize precisely such a program when it enacted and reauthorized Section 215 of the Act.... But Congress intended no such thing." 

 

Last week, the ACLU also received support from two former members of the Church Committee and 30 law professors. That brief argues that the government's bulk collection of our call records is inconsistent with the goals of Congress when it enacted the Foreign Intelligence Surveillance Act (FISA) in 1978. It argues that one of the most important reforms enacted by Congress in response to the Church Committee's findings was the requirement that the government obtain individualized surveillance orders before spying on Americans. The government's bulk collection of our call records ignores that common-sense limitation on its spying authority.

The amicus briefs were filed in ACLU v. Clapper, which challenges the government's ongoing collection, under Section 215 of the Patriot Act, of the details of every single phone call made by every American. This post does a good job explaining how incredibly invasive those details, known as metadata, can be.

Below is a handy visualization demonstrating the staggering scope of just what the government is doing. We learned this summer that when NSA analysts want to search through the phone records of terrorism suspects, they also search through the records of anyone "three hops" away from that suspect. If three sounds like a small number to you, consider what that means if each of those "hops" has just 40 contacts. The size of the government's dragnet suddenly becomes clearer and considerably more frightening.

ACLU Blog of Rights

Ezekiel Edwards

Over the last few months, we've been bombarded with revelation after revelation about the NSA's unprecedented spying on Americans. But, according to The New York Times, the NSA's untethered snooping is eclipsed by the agents fighting in a war that began long before 9/11: the costly and failed War on Drugs.

The Drug Enforcement Administration's secret Hemisphere Project, news of which broke this week, allows drug law enforcement agencies broad access to billions of AT&T phone records going back a quarter century-to 1987. As The New York Times explained, "the scale and longevity of the data storage appears to be unmatched by other government programs, including the N.S.A.'s gathering of phone call logs under the Patriot Act."

Our government's mass telephonic data-mining has sparked immense and deserved outrage. But to those who have been targeted by the War on Drugs for the last several decades, the Hemisphere Project is only one in a long line of privacy-invading tactics employed by the U.S. government. Many other intrusions - such as the thousands of unconstitutional stops-and-frisks of people of color in cities across the country, the countless doors kicked in by police in search of drugs, the seizure and forfeiture of property of people never convicted of a crime - are representative of the kinds of common corporal intrusions that have been endured by many Americans, disproportionately of color, long before many post 9/11-era invasions of privacy became commonplace for all Americans.

Further, since 9/11, there has been an increasingly entrenched relationship between overreaching national security programs and domestic drug law enforcement policies. Each has fed on the other: the long-running drug war provided useful surveillance blueprints for the massive domestic spying programs that have sprouted up since 9/11. At the same time, domestic drug law enforcement agencies have seized upon the dismantling of basic constitutional protections over the past decade - in the name of national security - and pointed the resulting weapons toward America's own citizens.

It should not surprise us then that the Hemisphere Project is only the latest disclosure of mission creep. We found out last month that the DEA secretly uses NSA surveillance data against Americans as part of its drug investigations - and then conceals its reliance on this foreign intelligence information. This practice jeopardizes the right to a fair trial for anyone facing criminal prosecution based on evidence derived from that surveillance data. Or consider "sneak and peek" warrants, in which law enforcement enters a home or office when no one is present and conducts a search of the premises, without giving notice to the occupant beforehand. Provisions allowing for these warrants were included in the Patriot Act after government officials said they are necessary to fight terrorism, but 76% of "sneak and peeks" were used in drug investigations in 2010. (And that is no anomaly: from 2006-2009, 1,618 sneak and peek warrants were used in drug cases, 22 in fraud cases, and 15 in terrorism investigations). Further, the use of GPS tracking devices, aerial surveillance, and the militarization of police - often justified by national security needs - are instead often coopted as highly destructive components of our domestic drug war.

In keeping with the clandestine nature of our government's various spying programs, the DEA had delineated a series of steps to "keep the program under the radar" by instructing "all requestors ... to never refer to Hemisphere in any official document" and "'walling off' the information the government obtains from Hemisphere." This is all in the name of enforcing drug prohibition, a 40-year failure that has cost billions, led to the unnecessary incarceration of millions of Americans, and failed to make a significant dent in the use, availability, or potency of drugs.

Why has the DEA kept this surreptitious surveillance program in the shadows? Because, as with so many of government surveillance programs, Hemisphere raises serious constitutional questions. There is a strong argument that it is unreasonable under the Fourth Amendment for the government to outsource the automatic collection and storage of millions of Americans' phone records without any individualized suspicion and without court approval or oversight-simply so that law enforcement agencies have easy and immediate access in the future. Like the N.S.A.'s mass call-tracking program, such extensive and unlimited data gathering, particularly reaching back decades, allows the government to construct incredibly detailed and invasive pictures of our past and present lives.

Simply put, under the tired guise of protecting Americans from drugs, the U.S. government has secretly targeted and invaded the life and privacy of millions of its own citizens. The U.S. should be ending the War on Drugs, not expanding it by secretly outsourcing widespread surveillance.

Ese Okuma is an Atlanta native. She graduated magna cum laude from Georgia State University with a B.S. in psychology.  Ese received her J.D. from the University of Virginia School of Law, where she was one of two students selected from her class to receive the Hardy Cross Dillard Scholarship, the Law School's most prestigious award. 

Ese is committed to protecting the rights and interests of the public and has joined the ACLU of Georgia this fall as a Robert F. Kennedy Public Service Fellow.  During law school, Ese served as the President of the Black Law Students Association, a fellow in the Law and Public Service Program, an editorial board member of the Journal on Law and Politics, and as the Vice President of the Child Advocacy and Research Education Student Organization. She also interned at the U.S. Department of Education, Office for Civil Rights and the ACLU of Georgia.

Don't Miss the Following Events!!

Citizenship in the Global Era - ABA 28th National Law-Related Education Conference

October 3-5

The Ritz-Carlton Buckhead

3434 Peachtree Rd NE

Atlanta, GA 30326

Friday, October 4, 4:30-6:30 pm - screening of "Electoral Dysfunction" with the directors Bennett Singer and David Deschamps and panel discussion.  Panelist to be announced.

Saturday, October 5, 10:30 a.m.-12:00 p.m.- panel discussion that will help provide an overview of the major issues in immigration and the law, immigration policy, and how they affect people every day in states like Georgia, and cities like Atlanta. Panelist are; Natsu Taylor Saito, Georgia State College of Law, Deborah Richardson, National Center for Civil and Human Rights and Azadeh Shahshahani, National Security/Immigrants' Rights Project Director of the ACLU of Georgia..