North Briton #45

The forgotten history of the Fourth Amendment, and its relevance for reforming the Patriot Act

The authorization for the Patriot Act will soon expire, and elected officials in Washington have been debating whether it should be renewed. There are those who believe this law, which was passed in the wake of the September 11 attacks, should be renewed with no changes.

Since the last time it was authorized, Americans have learned that certain provisions of this Act were being interpreted by the National Security Agency to give this agency authority to collect bulk metadata on the phone calls of every American. This controversial practice has led to an erosion of support for the Patriot Act in Congress, and currently there aren’t enough votes in Congress to pass a clean re-authorization of this law. Americans across the country are rising up and demanding that their rights to privacy be protected.

The Constitution of the United States protects the American people against unreasonable searches, and it does so against a long historical backdrop of government abuse. Over time, our founding fathers came to an understanding that the immense power of government needs to be constrained. They understood that those in power will tend to accumulate more power, and in time they will tend to abuse that power, unless that power is carefully constrained. America’s founding fathers were informed in many respects by what they learned from our previous national government, our London-based national government.

They were informed in part by the story of John Wilkes. John Wilkes, not to be confused with John Wilkes Booth, the assassin of Abraham Lincoln, was a member of English parliament. In 1763 he found himself at the receiving end of King George III’s justice. In 1763, John Wilkes had published a document known as the North Briton Number 45. The North Briton was a weekly circular, or type of news magazine in England. Unlike most of the other weeklies in England at a time, The North Briton was not dedicated to the praise of King George III and his ministers. From time to time, this weekly would actually criticize the actions of King George.

At the time John Wilkes published The North Briton Number 45, he became the enemy of the King because he had criticized certain remarks delivered by the King in his address to Parliament. While not openly and directly critical of the King himself, he criticized the King’s ministers who had prepared the remarks. For King George III this was simply too much. This simply could not stand. So on Easter Sunday 1763 John Wilkes found himself arrested and he found himself subject to an invasive search.

Now this search was performed pursuant to a general warrant. In other words, this was a warrant that didn’t specify the names of the individuals to be searched, the particular places to be searched, nor the particular items subject to that invasive search. It said in essence to go and find the people responsible for this horrendous publication, North Briton Number 45, and go after them. Search through their papers. Get everything you want. Get everything you need.

Now, John Wilkes decided that his rights as an Englishman should have prevented this type of action. He chose to fight this action in court. It took time, some of which John Wilkes spent in jail, but he eventually won his freedom. He was subsequently re-elected to multiple terms in Parliament, and because he fought this battle against the administration of King George III, he became something of a folk hero across England.

In fact, the number 45, with its association with the North Briton number 45, became synonymous not only with John Wilkes but also with the cause of freedom itself. The number 45 was a symbol of liberty, not only in England but also in America. People would celebrate by ordering 45 drinks for their 45 closest friends. People would recognize this symbol by writing the number 45 on the walls of taverns and saloons. The number 45 came to represent the triumph of the common citizen against the all-powerful force of an overbearing national government.

With the example of John Wilkes in mind, the founding fathers were rightly wary of allowing government access to private activities and the communications of citizens. They feared not only that the government could seize their property, but also that it could gain access to details about their private lives. It was for exactly this reason that when James Madison began writing what would become the fourth amendment in 1789, he used language to make sure that general warrants would not be acceptable in our new republic. Ultimately, Congress proposed and the states ratified the Fourth Amendment to the U.S. Constitution, which says that any search warrants would have to be warrants that are “particularly describing the place to be searched and the persons or things to be seized.”

General warrants are not the norm in America. General warrants are not acceptable in America. They are not compatible with our constitutional system, yet today we see a disturbing trend. This trend bears some eerie similarities to the general warrants issued in the days of John Wilkes. Today we have the NSA collecting data on every phone call that is made in America. If you own and use a telephone, the NSA has records going back five years for every number that you have called and every number from which you have received a call. It knows when the call was placed; it knows how long the call lasted.

While any one of these data points alone might not inform the government too much about you, researchers using similar data have proven that the government could, if it wanted, use that same data set to discern an awful lot of private information about you. They could discern your religious affiliation, your political affiliation, and the level of your religious or political activity. They could know the condition of your health. They could identify what your hobbies and your interests are. These meta-data points can reveal a lot about the American people.

This issue was recently challenged in court and was the subject of a ruling issued by the United States Court of Appeals for the Second Circuit of New York. The Second Circuit concluded that Section 215 of the Patriot Act, the provision of the Patriot Act that is claimed to justify this bulk data collection program, does not authorize bulk collection. Section 215 does not authorize the NSA to simply issue orders to telephone service providers saying send us all of your data. The language of the Patriot Act only permitted the government to access the records that were “relevant to an authorized investigation.”

That’s the language from section 215 that’s at issue. Now, the government argued in that case that the term relevant in the context of the NSA’s work meant and unnecessarily included every record regarding every telephone number used by every American. By interpreting it this way, they tried to basically strip all meaning from the word “relevant.” If Congress had meant every record, Congress could have said every record. It did not.

I don’t think it would have been appropriate for Congress to do so and had Congress legislated in such broad terms, I suspect there would have been significant concern raised, if not in court then at least within the halls of Congress. It is no surprise then that Congress did not adopt that statutory language.

Congress instead authorized NSA to collect records that are “relevant to an authorized investigation.” The Second Circuit agreed that this is a problem, holding that the bulk collection program exceeded the language in the statute, specifically the word “relevant.” While relevant is a broad standard, it is intended to be a limiting term whose bounds were read out of the statute by a government willing to overreach its bounds.

Now, the proper American response to government overreach involves setting clear limits, limits that will allow the people to hold the government accountable. We must not permit this type of collection to continue. While it’s true that a single call record reveals relatively little information about you, the important thing to remember is that when you aggregate all of this data together the government can tell a lot about you.

I have every confidence that the hardworking brave men and women who work at the NSA are not abusing this database as it stands right now. Some would disagree with me in that assumption, but let’s proceed under that assumption that they are law-abiding individuals who are not abusing their access to this database. Who’s to say that the NSA will always be inhabited only by such people?

We know that in time people tend to abuse these types of government programs. We know from the Church Report back in the 1970s that every administration from F.D.R. through Nixon used our nation’s intelligence gathering entities to engage in political espionage. It’s not a question of if things like this will be abused; it’s a question of when they will ultimately be abused. It’s our job as U.S. Senators to help protect the American people against excessive risk to this type of abuse.

That’s why I worked with Senator Leahy to introduce the USA Freedom Act. It directly addresses the bulk data collection issue while preserving essential intelligence-communicating capabilities. Rather than relying on the government’s interpretation of the word “relevant,” our bill requires that NSA requests include a specific selection term to identify a specific target. The NSA would then use the term to limit to the greatest extent reasonably practicable the scope of its request. This bill would enable the court to invite pre-cleared privacy experts to help decide how to address novel questions of law, if the court wants any input. The bill would also increase our security by providing emergency authority when a target of surveillance enters the United States, to cause serious bodily harm or death. The USA Freedom Act also implements the changes necessary to come in line with bush-era nuclear treaties.

This bill was negotiated in consultation with the House Judiciary Committee, the House Intelligence Committee, and the intelligence community at large. Just last week, the House of Representatives passed the USA Freedom Act in an overwhelming vote of 338–88. It enjoys broad support from industry and privacy groups. The USA Freedom Act is an important compromise that will preserve the legacy of the Fourth Amendment as it enables us to protect Americans’ privacy while giving the government the tools it needs to keep us safe. The Senate needs to have an open debate on this important reform and earn back the trust of the American people.