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The Perils of (Vague Delegations of) Power

- June 7, 2013

Related (and complementary) to John’s earlier post

So why could the Obama administration collect data on – as it appears – pretty much every phone call you make? The answer seems to be a lesson in legislative drafting – since it resides in the wide grant of power Congress delegated to the administration in the Patriot Act (sorry, the USA PATRIOT Act: “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism”) originally passed in October 2001. (This is before we get to PRISM, which appears to operate using different legal authority. Sorry, it’s hard to keep up… but here, too, it appears that Congress – though possibly unwittingly – granted new powers to the president.)

The relevant piece of the Patriot Act (P.L. 107-56) is Section 215, entitled “business records,” which amended the Foreign Intelligence Surveillance Act (FISA) of 1978 to include the following text:

The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

The investigation shall “be conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor order)” – this E.O. deals with intelligence gathering, and basically says it has to be legal (which the Patriot Act says it is, so…) To be approved by the FISA court, the application need only “specify that the records concerned are sought for an authorized investigation conducted …to protect against international terrorism or clandestine intelligence activities.”  If that’s done — and that’s a pretty easy bar to clear, given a Justice Department willing to sign off on such a broad program — then the judge would seem to have little discretion.

Nor does it seem likely that the program, at least as publicly described (e.g. in the court order, see here), violates the Fourth Amendment. This seems odd given that amendment’s ban on “unreasonable” search and seizure procedures. But as it happens the Supreme Court ruled in Smith v. Maryland back in 1979 – in a majority opinion that brought together justices as disparate as Harry Blackmun and William Rehnquist – that the kinds of records tracked in the present case are not subject to the 4th amendment (thanks to Harry Pohlman for pointing this out). Their reasoning was that you have “no reasonable expectation of privacy” when it comes to the numbers you dial, since you know that the phone company keeps track of such information.  In any case, the majority held, “even if petitioner did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation is not one that society is prepared to recognize as reasonable. This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”

One could argue that in the cell phone age the conception of location and numeric data is quite different (we are as far removed from 1979 as 1979 was from operator-controlled party lines). But so far as I know, Smith is still good law.

So, we can complain about the policy choice, but the lack of limits in the law’s language does constitute a policy choice, not an administration “going rogue” outside the law. (Whether you should read the law the way the administration wants to, you could.) We could blame the rushed process by which the act was passed in October 2001, given the stress (and yes, terror) of the time, but since then this text has been renewed at least three times (in 2006, 2010, and 2011), and there has been quite a lot of argumentation over Section 215 (a useful background piece for the ’11 debate is here.) As John pointed out below, Congress has signed off on this language quite explicitly.

Just for fun, you can read Senator Obama’s speech on the 2006 reauthorization here (“I will be supporting the Patriot Act compromise. But I urge my colleagues to continue working on ways to improve the civil liberties protections in the Patriot Act after it is reauthorized.”)  President Obama, once in office, was rather less concerned with said improvement; AG Eric Holder said in 2011 that the administration strongly supported extending Section 215 “for as long as we possibly can.” That turned out to be to 2015 – though current events may change that calculation.