Susan Freiwald, a professor at University of San Francisco School of Law, said today that two recently revealed government surveillance programs likely ran afoul of the Fourth Amendment. George Mason University School of Law Professor Nathan Sales countered that there was a national security need for broader surveillance programs and pointed to what he believed were certain protections already in place against government overreach.
Freiwald and Sales sparred during a panel on privacy and security during the American Constitution Society for Law and Policy's annual convention in downtown Washington. Moderator Jeffrey Rosen, president and CEO of the National Constitution Center, focused the discussion on the recent disclosure of the National Security Agency's PRISM system, which reportedly enabled the government to access information on communications through online companies, and another program that collected data from Verizon Wireless and other wireless carriers.
Freiwald said both surveillance programs raised constitutional red flags. The Fourth Amendment was created with the expectation that all three branches of government would have a say in how the executive branch carried out surveillance, she said, but Congress and the courts weren't doing their part. Congress, she said, had failed to update laws to keep up with technology, while the courts hadn't addressed Fourth Amendment questions raised by the same new technology.
Sales said he thought there was enough "potential upside" to using broader surveillance programs, as long as sufficient restraints were in place. With the Verizon program, for instance, which involved collecting metadata for all domestic calls in a three-month period, he said the section of the Foreign Intelligence Surveillance Act at issue put a high bar in place for the government to actually access the data it collected.
Freiwald countered that the standards for carrying out that type of surveillance were "unbelievably broad" and that it was "silly" to think they imposed enough limits.
The panelists agreed that many of the current laws and court precedent concerning electronic surveillance were outdated. Mark Eckenwiler, who has a privacy and security practice at Perkins Coie, said the Electronic Communications Privacy Act, for instance, which passed in the late 1980s, "is starting to show its age." He noted Congress was weighing reform that would expand the circumstances in which law enforcement officials needed a warrant to collect certain electronic information.
Peter Swire, a professor at the Ohio State University Moritz College of Law, said there were not enough civil liberties voices to counter bureaucratic pressure not to change the current system. "It takes a level of pressure that's really enormous," he said.
A common theme throughout the discussion was the sheer scope of unknowns when it came to government surveillance, which the panelists said made it difficult to form a concrete opinion about whether certain actions by the executive branch were constitutional.
For instance, orders from the federal court that approves certain types of government requests, the Foreign Intelligence Surveillance Court, were secret. Sales said there was no way to know how the government justified the request or what type of restrictions the court placed on the surveillance activity.
Freiwald said she was concerned by the extent agencies self-regulated when it came to accessing the data they collected. Sales replied the agencies were bound to follow court orders permitting the surveillance, which did provide a check.
During a question-and-answer session, though, former U.S. District Judge Nancy Gertner of Massachusetts, now a professor at Harvard Law School, said any faith in the surveillance court, which is staffed by federal judges also serving in other courts, was "misplaced," noting the amount of case law already on the books diluting the Fourth Amendment. Gertner, who teaches civil rights and civil liberties, added that judges "like me" weren't appointed to serve on the surveillance court.
National Law Journal photo by Zoe Tillman. From left, Peter Swire, Nathan Sales, Jeffrey Rosen, Susan Freiwald and Mark Eckenwiler.