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Jeffrey Vagle, CTIC Executive Director, talks about new developments in surveillance law

May 15, 2015

With the ethics and efficacy of surveillance under debate, Penn Law Communications sat down with Jeffrey Vagle, the Executive Director of the Center for Technology, Innovation & Competition, to talk about the current state of surveillance law, what legal developments to look for in the future, and the challenges of balancing security and civil liberties.

Penn Law: What is the state of surveillance law in America right now? 

Jeffrey Vagle: There are three primary legal regimes under which the intelligence community and law enforcement gather intelligence today under the rubric of national security. There is the Foreign Intelligence Surveillance Act, which was originally enacted in 1978 based on the recommendations of the Church Committee to put limits on what the intelligence agencies could do within the borders to American citizens. Basically it said that intelligence collection had to be related to foreign intelligence, meaning that the surveillance target had to be either a foreign actor or someone acting on behalf of that foreign state.

The Patriot Act has a section, Section 215, which is set to expire on June 1, that the FISA court — the court that was set up through the Foreign Intelligence Surveillance Act — has interpreted as enabling the intelligence agencies to bulk collect metadata, including telephone records. They refer to these records as business records, but it is basically call records — everything but the content of your call. For example, who called whom at what time and for how long. All of that is considered metadata, or non-content data. Under the government’s interpretation of Section 215, the intelligence agencies can collect this information in bulk because it is not content data and therefore not subject to protections under the Fourth Amendment. That interpretation is being challenged — there are many in Congress, many scholars, and many attorneys who feel like that interpretation is a bit broad. 

The third main area is not a law, it’s an executive order: Executive Order 12333, which originated in the Reagan Administration. We don’t know much about it because the interpretations of that executive order, which have to do with intelligence gathering, are secret. We don’t know the details of how the intelligence agencies are interpreting 12333. 

PL: What is the right way forward when it comes to updating surveillance law in America? 

JV: In the years following the September 11 tragedy, the FISA Act was reformed to weaken the surveillance restrictions that had initially been put in place by the congress after the Church Committee findings. Those amendments to the FISA Act, I believe, are unconstitutional and have been challenged in court since then, but the challenges have not made it past the standing stage. I think if we were actually able to debate the merits of these cases, we would find that while not all of the changes that were made in the 2008 FISA Amendments Act are unconstitutional, but some of them certainly are. The best thing, in my opinion, would be to go back and re-evaluate the intent of FISA. 

On May 7, in fact, the U.S. Court of Appeals for the Second Circuit weighed in on this issue in ACLU v. Clapper, which is a case challenging the legality of the NSA’s bulk telephone metadata collection under Section 215. The court went to some length discussing the findings of the Church Committee and the original reasoning behind FISA, and held that, contrary to the government’s arguments, Section 215 does not preclude Article III judicial review, and the NSA’s bulk telephone metadata collection program is not authorized under Section 215. The Court of Appeals has remanded the case back to the District Court — we’ll see where this case goes from here.

I think that FISA was well written. It doesn’t hamstring the intelligence community. But there’s still a balancing act with respect to American citizens, between national security and civil liberties. And that’s what the original FISA Act was intended to do. I think going back to that, or at least some form of that, would be the right way to go. 

PL: Many pundits seem to say we don’t have to choose between national security and civil liberties — do you agree with that?  Is it possible to strike that balance between transparency, national security, and civil liberties?  If so, what does that look like legally? 

JV: The devil is in the details. The professionals in the intelligence community want to do their job; they want to do the right thing. They want adhere to the law, but they need to know: what is the law? They want to know where the boundaries are. 

Similarly, the American public wants a balance, but transparency is key. This is something that makes the intelligence community somewhat nervous, obviously. I think that’s part of the bargain. There is no one answer, unfortunately. It’s always going to be a debate. 

During times of crisis we have sometimes overreacted. In some ways, after September 11, we had a natural overreaction — the pendulum swung further away from civil liberties toward national security. I think we just have to realize that in order for this country to be the country it is, to adhere to the constitutional principles that we have all agreed to, we have to have both. We cannot — especially during times of crisis — make changes to our fundamental principles.  That’s the worst time to start making these changes. 

This is something that we, as citizens, need to take an active part in and think about in a very active way. It’s complicated, but it’s something that affects our lives daily. 

PL: You’re the Executive Director of the Center for Technology, Innovation and Competition.  What should the average citizen with a smartphone be thinking about this in terms of the way surveillance and technology intersect on a day-to-day basis? 

JV: The metadata collection program is what should concern us right now the most. Under the current government interpretations of Section 215, the intelligence community can sweep up metadata about U.S. citizens because they’re arguing that it’s not content data. But metadata can actually be more revealing than content data. For example, if, through call records, you can see that a gynecologist calls a young woman, who then calls her mother, then calls her boyfriend, and then calls Planned Parenthood — you don’t need to listen to the content of those calls to know what’s going on. 

What makes this so insidious, and what makes metadata in many ways a much more powerful tool for law enforcement than content, is that metadata is already formatted for computers to understand. Metadata is made for automation. Computers can easily digest it and start making sense of it. 

And if you have everything — all this metadata going back years — what’s to prevent law enforcement, or any other government agency, from going back and making cases retroactively based on information that they just swept up without any sort of suspicion? This starts to get on very shaky legal ground and starts to attack the foundations of what our civil liberties mean.