Knowledge is Power: How the NSA bulk data seizure program is like gun registration

January 21

We are repeatedly told by defenders of the NSA bulk data seizure program that there has not been a single example of any abuse by the NSA of this database. Set aside the information that the NSA regularly violated its own rules. Set aside the fact that the so-called FISA “court” lacks the independent information needed to oversee such abuses.  Set aside the information we have that some NSA employees used their access to this data to cyberstalk their love interests, giving rise to the internal nickname “LoveINT.”  Set aside the fact that Edward Snowden managed to get his hands on “literally everything” without authorization. Set aside that this was likely made possible due to the absence of internal monitoring of data collection at the NSA, so it cannot be effectively audited and held accountable.  And, above all, set aside the fact that this is a top secret program, the operational details of which we have no direct knowledge. Query whether government officials such as the Attorney General, or even the President himself, are privy to how the program actually works. After all, the concept of “deniability” was invented to shield them from such information so they can deny any such knowledge.

Set all this aside and assume instead that the claim of “not a single abuse” is true. Does that justify the existence of such a program of data collection on every person in the United States? I do not think so. Knowledge is power, and the power to access this information in secret is a very dangerous one. Consider why gun rights advocates, like myself, oppose firearm registration. We are told by proponents of such registration that it is “reasonable” because it does not deprive anyone of his or her right to keep or bear arms. Yet the very existence of the data trove makes present and future violations more feasible and, therefore, more likely.  For example, the New York Police Department reportedly sent notices to registered gun owners to surrender their guns having a capacity of more than 5 rounds, as such weapons now violate state law. Formerly perfectly legal and entirely conventional guns are now susceptible to confiscation due to registration.

The brute fact that the government does not know where the guns are makes it much more difficult to confiscate them in the future. Not only does this illustrate the practical danger to constitutional liberties posed by the government simply possessing vast information about our activities and associations for later search. The trove of phone and email metadata to which the NSA now has access would make gun registration unnecessary as the government would already possess enough information to identify most gun owners.

In the “good old days” of Smith v. Maryland, the principal authority cited on behalf of the constitutionality of this bulk data seizure program, there needed to be a pen register installed on any particular person’s phone whose activities were being tracked. Not only did law enforcement have good reason to be suspicious of Michael Lee Smith, authorities had to present its track and trace order to a third-party – the phone company – which provided an external constraint on such tracking.  Now we have a policy of “pen registers for everyone,” the information from which is automatically seized and kept entirely in house, subject only to internal “controls.”

This vast searchable database creates three grave threats to the personal liberties of the citizenry.

  • First, is the use of such information – like the use of the IRS to suppress political opposition – illicitly and improperly to target people for political purposes.
  • Second, and equally dangerous, is a future legally authorized “mission creep,” as this data is used for more and more purposes. We are already hearing, for example, that NSA is sharing data with other agencies, such as the Drug Enforcement Administration, who then obscure the source of their tips with other evidence.  After all, “if it would have saved just one life….”
  • Third, if this use of so-called “metadata” in the hands of third-parties is allowed, then bulk seizure and storage of other third-party records, such as our credit card statements, is equally permissible.  Once this bulk collection of “metadata” is permitted, there is no judicially-administrable limiting principle confining it to our phone records, or email “headers.”

The power to search all our communications – or all our third-party records – is a power too great to repose in the government’s hands. Unlike private business like Verizon or Google, those in government have a strong incentive and desire to suppress dissent – along with their political rivals – and need only the means to do so. Unlike private companies, they have the power to incarcerate anyone on their enemies targeting list should their searches turn up anything incriminating. Yahoo and Sprint have neither the motive nor the means to restrict our liberties.

Cato’s Jim Harper and I have contended that all these bulk data seizure programs are both illegal under Section 215 of the Patriot Act and unconstitutional under the Fourth Amendment.  But set aside such arguments.  Whether legal or illegal, constitutional or unconstitutional, knowledge is power.  And this is too much power to give any agency of government.

Randy Barnett is the Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center, and Director of the Georgetown Center for the Constitution. His books include: Restoring the Lost Constitution: The Presumption of Liberty (Princeton, 2d. ed 2014); and The Structure of Liberty: Justice and the Rule of Law (Oxford, 2d. ed. 2014).
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