Remember when, during the 2008 elections, then-Senator Barack Obama was greeted by hundreds of thousands of excited Germans during his visit to Berlin? Well, the American honeymoon in Bavaria appears to be over. After the recent news implicating the United States in a phone-bugging scandal targeted at German Chancellor Angela Merkel, now-President Obama might still draw a crowd in Berlin, but more likely one that would express a far more displeased demeanor than in ‘08.
But Chancellor Merkel isn’t the only one whose phone calls are the subject of Big Brother’s watchful eye. The Guardian newspaper recently published a highly classified U.S. court order that allows the NSA access to the entirety of Verizon’s phone records. That doesn’t mean the government is listening in (as was the case with our ally in Germany), but it did receive all phone numbers with outgoing or incoming calls, as well as the identifying serial numbers of the network’s active cellphones. This means Uncle Sam knows which phones are being used even if customers change their numbers.
But this isn’t something new. In 2006, USA Today reported that the NSA was secretly collecting the phone call records of tens of millions of Americans, but eventually distanced itself from the story after some phone companies denied their complicity. The recent document released by The Guardian, however, offers credence to USA Today’s abandoned story.
So what, you may be asking as an astute law student, is the legal basis for this vast compromise in our privacy? In a normal wiretap setting, a government intrusion into a private phone call would require probable cause. But not here. The seizure of this information was authorized by the Foreign Intelligence Surveillance Court, which operates under a different standard, and among the differences, probable cause is not required. The Foreign Intelligence Surveillance Act (FISA) of 1978 created this shadowy monster, and judges hear secret evidence and authorize wiretapping, search warrants and other clandestine efforts to monitor suspected or known spies and terrorists.
So if the standard required to access this information is not probable cause, what is it? For that, we have to look to the—you guessed it—the Patriot Act. Specifically, Section 215 of the Patriot Act allows the government to order any person or entity to turn over “any tangible things,” so long as the FBI “specif[ies]” that the order is “for an authorized investigation . . . to protect against international terrorism or clandestine intelligence activities.” Under that provision, the government must show that there are “reasonable grounds to believe” that the records are relevant to an investigation intended to “protect against international terrorism or clandestine intelligence activities.” Awesome, right? I thought you’d find that comforting.
So to Chancellor Merkel, I say this: we feel your pain. And while I have no doubt that Section 215 of the Patriot Act has probably somehow aided in the interception of terrorist plots, the possible negative implications are difficult to understate. And while the acts of the NSA constitute a deep violation of Chancellor Merkel’s personal privacy as well as an affront to the diplomatic relationship between our two countries, at least President Obama didn’t giver her a super-sexy shoulder rub, like a certain other fan of the Patriot Act.
