Vermont Bar Journal, Vol. 40, No. 2 Spring 2014, Vol. 40, No. 1 | Page 16

by David F. Kelley, Esq.

Taking Terabytes Out of the Constitution:
Can We Fight Terrorism Without Big Brother?
Last year my wife and I hosted an exchange student from Pakistan. He came
to the U.S. under the auspices of the State
Department’s Kennedy Lugar Youth Exchange. We continue to be friends on Facebook, to Skype, and to exchange emails.
We wanted to help improve relations with
Pakistan. By communicating with this student and his family and friends, without
ever knowing it, we gave the National Security Agency (NSA) carte blanche to delve
into every corner of our lives.
Our right to be secure in our “persons,
houses, papers, and effects, against unreasonable searches and seizures” is the product of a struggle that is primordial. One
Vermont judge described it this way: “The
history of western civilization reveals an ancient and profound respect for the dwelling of an individual. It also illustrates the
antiquity and importance of the requirement that the authorities must have cause
to invade such dwellings and may do so
only with specific and particularized authority.”1 
In that decision Judge Frank Mahady recalled that in 1761,
when British customs inspectors were
given general warrants to search the
property of any and all Boston merchants, James Otis, Jr. unsuccessfully represented the merchants who
fought those warrants. One of those
present at the trial, John Adams, later
wrote, ‘Then and there the Child of Independence was born. In fifteen years,
namely in 1776, he grew up to manhood, and declared himself free.’”2
In 1761 the British customs agents did their
searches in person—and they at least had
the semblance of a warrant. Today, with
surveillance searches and data seizures
pursuant to Section 215 of the Patriot Act,3
the government can enter homes and businesses through a fiber optic cable and
gain access to more persons, houses, papers and effects than George III could have
ever imagined, even in his wildest dreams.
Last summer’s revelations from Edward
Snowden revealed that this power casts a
dark shadow across the First, Fourth, and
Fifth Amendments to the U.S. Constitution.
The National Security
Agency (NSA) Programs

The challenges to the NSA programs
16

that have made their way through the first
round of litigation thus far (at the time of
this writing) have focussed primarily on the
NSA’s collections of bulk records of telephone data (so-called “telephony metadata”). However there are other executive
branch programs that are less understood
and perhaps more troubling.4
Glenn Greenwald, in articles published
in the Guardian, based on documents disclosed by Snowden, described a program
called “Prism” on June 6, 2013. According
to Greenwald:
• The National Security Agency has obtained direct access to the systems of
Google, Facebook, Apple, and other
US internet giants.
• Using Prism, officials can collect material including search history, the content of emails, file transfers, and live
chats. Prism collects metadata with
a court warrant through the “front
door.”5
On October 30, 2013, the Washington Post disclosed another NSA program
referred to as “Muscular.” The so-called
Muscular program collects metadata from
Google and Yahoo data centers around
the world. By adding and removing encryption the NSA collects this data through
the “back door,” outside the U.S., and thus
avoids the restrictions imposed by U.S. law.
Digital communications and cloud storage
don’t recognize national boundaries, thus
allowing virtually unrestricted access to
much of the U.S. internet traffic.
On June 11, 2013, Glen Greenwald,
again writing in the Guardian disclosed
another program called “Boundless Informant.” Boundless Informant records,
counts, categorizes, and analyses surveillance searches and data seizures. Over a
thirty-day period it collects three billion
pieces of intelligence.6
The dangers of this kind of tool became clear recently during protests in the
Ukraine, when the Ukrainian government
sent texts to the cell phones of protesters
in the center of Kiev telling them they had
been identified as being at the protest. If
the Ukrainian government has that capability it is hard to imagine the NSA’s capabilities.
But the most troubling of the disclosures to date is the “XKeyscore” program
described by Greenwald in the Guardian on July 31, 2013.7 According to GreTHE VERMONT BAR JOURNAL • SPRING 2014

enwald:
• Xkeyscore
allows
analysts
to
search with no prior authorization through vast databases containing
emails, online chats, and the browsing
histories of millions of individuals.
• Analysts can use it and other systems
to mine enormous agency databases (called “the Corporate Store”) by
filling in a simple on-screen form giving only a broad justification for the
search. The request is not reviewed by
a court or any NSA personnel before it
is processed. 
• The program covers “nearly everything a typical user does on the internet,” including the content of emails,
websites visited, and searches, as well
as their metadata.
• Analysts can also use  XKeyscore  and
other NSA systems to obtain ongoing
“real-time