Laura Donohue is a professor of law at Georgetown University and was recently appointed as a public advocate to the Foreign Intelligence Surveillance Court. She is also the author of a new book published by Oxford University Press, “The Future of Foreign Intelligence: Privacy and Surveillance in a Digital Age.” I asked her some questions about the argument of her book.
HF: In your book, you argue that the “collection and analysis of citizens’ information now threatens individual liberty and risks upsetting the balance of power in the United States.” What has changed to make the collection of information such a problem?
LD: Three things have changed.
First, more of our lives are digitized and recorded than ever before. This means that more private information is available, and that it can be combined with other digital data, and analyzed, to provide deeper insight into our lives. Algorithmic sciences have catapulted forward the amount of information that can be obtained, allowing even for predictive analyses based on our past behavior. Technology has radically altered the world.
Second, the standards for obtaining this information for foreign intelligence purposes have, for the most part, been relaxed. A combination of new statutes, secret legal interpretations, and classified guidelines have worked together to give the government, post-9/11, ever greater insight into citizens¹ ordinary lives.
Third, the boundaries between foreign intelligence and criminal law are collapsing. What this means is that foreign intelligence collection has become a way to bypass the Fourth Amendment protections that otherwise exist in the realm of criminal law. Prior to 9/11, in order to make use of foreign intelligence, the primary purpose for which the information was being obtained had to be foreign intelligence. Now, however, as a result of internal Department of Justice changes and Foreign Intelligence Surveillance Court (FISC) decisions, the primary purpose can be criminal in nature. And once the information is obtained, it can be queried, using citizens’ data, for totally unrelated criminal purposes. So if we have lowered standards for the collection of communications outside the United States, and the information can be collected for foreign intelligence but queried to look for patterns or information that indicate any illegal activity, then we have just provided the government with the broad authority to continually monitor U.S. citizens.
HF: You see some similarities between recent surveillance practice and the kinds of ‘general warrants’ deplored by the U.S.A.’s founders. What are these similarities?
A general warrant is a document issued by the executive branch, or a court. It is not based on any prior evidence of wrongdoing. It lacks particularity regarding the person or place to be searched, or the papers or records to be seized. It is not supported by oath or affirmation. It is used to find evidence of wrongdoing.
For centuries prior to the U.S. founding, English jurists and legal scholars rejected general warrants as the worst exercise of tyrannical power. As Sir Edward Coke announced in parliament in 1628, ‘If [general warrants] be used per man datum domino regis, or for matter of state,’ then we are gone, and we are in a worse case than ever. If we agree . . . for matters of state. . . We shall leave Magna Carta and other statutes and make them fruitless, and do what our ancestors would never do.’ Sir Matthew Hale, William Hawkins, and others went on to condemn them, as did our founding generation. James Otis Jr.’s famous oration in Paxton’s Case said that he would to his “dying day oppose all such instruments of slavery on the one hand, and villainy on the other” as writs of assistance (a particular form of general warrant). President John Adams, who had been present at Otis’s argument, later reflected, “Then and there the child Independence was born.” State after state went on to outlaw general warrants in their constitutions, before the Fourth Amendment prohibited it in the federal Constitution.
With this history in mind, one could, perhaps, be forgiven for being surprised to wake up on June 6, 2013, to find the Guardian reporting that the United States was collecting the phone records of millions of Americans. The order required Verizon to turn over “all call detail records” of “telephony metadata” created by Verizon for communications (I) between the United States and abroad; or (ii) “wholly within the United States, including local telephone calls.”
Issued by FISC, the order did not name any individual suspected of wrongdoing. It did not specify a crime. There was no oath or affirmation. It did not indicate the particular place to be searched. Indeed, it did not appear to be tailored in any way whatsoever. It empowered the intelligence agencies and, as it turns out, federal law enforcement agencies, to obtain private papers, under a judicial writ. Anyone served with the order was required to comply. And rather than starting, at the outset, with information indicating that illegal behavior was underway, the orders were being used to find evidence of criminal activity. In short, it was a general warrant.
Some people have argued that the information being collected under the order was not private and thus did not deserve the protection of the Fourth Amendment. This statement does not survive scrutiny. The order demanded that documents detailing citizens’ friendships, private conversations, social networks and relationships, as well as their location (as revealed from trunk identifier information), twenty four hours a day, seven days a week, for months at a time, be turned over to the government.
The same interests at stake in the founders’ rejection of general warrants were at play: the right to be secure against unwarranted government intrusion into one’s private affairs. The right to solitude, to be unguarded in our actions. The ability to form relationships and to generate different levels of intimacy with others. Democratic deliberation … the list continues. The founders took seriously the kinds of harms that could result from amassing so much information on citizens – both the potential to use the power to head off opposition, and the danger that the accumulation of such data would undermine the structural protections that they had worked so hard to construct.
HF: You describe how barriers between the use of information for foreign intelligence purposes and the use of information for law enforcement have been weakened, so that foreign intelligence gathered without a warrant can be used for criminal investigations, under relatively broad conditions. How did this happen?
The Apple case is an excellent example of the collapse between criminal law and national security. Ostensibly, the San Bernardino case was about responding to terrorist threats from ISIS. But almost immediately, the broader claim was how many ordinary criminal cases could be addressed by giving local, state, and federal law enforcement agencies access to all of the documents and information held on mobile devices. What starts as a national security claim quickly becomes an aspect of ordinary law enforcement.
HF: Law enforcement officials have retorted that unbreakable cryptography could render specific warrants, targeted against individuals who have plausibly committed crimes, irrelevant. Do they have a good argument, and how would you respond to it?
LD: The argument being put forward is misleading. Law enforcement, for most of our history, has not been able to use warrants to obtain whatever it wants — and certainly not when they were to be used to try to find evidence of wrongdoing. It was not until the demise of the mere evidence rule in 1967, that warrants could be used to obtain anything other than the fruits or instrumentalities of crime.
Warrants, moreover, would still be relevant for a range of uses. They just could not be exercised by certain entities. Forcing individuals to reveal certain documents reaches to Fifth Amendment concerns and the right against self-incrimination. The real question in the encryption debate is whether there is any such thing as digital privacy, or whether the government ought to have access to every single thing that has been digitized.