Vermont Bar Journal, Vol. 40, No. 2 Spring 2014, Vol. 40, No. 1 | Page 18

Taking Terabytes Out of the Constitution

raids on their homes and vigorous
prosecutions from U.S. attorneys’ offices?19 
Pauley concludes that there is no violation of the 4th Amendment because the
threat of terrorism makes the massive collection of telephone metadata “reasonable.” He cites three examples of where he
was persuaded that the use of bulk telephone data helped thwart terrorist plots.
He doesn’t explain what role that data actually played in thwarting these terrorist
plots. In fact, the Congressional Research
Service wrote a report months before
Judge Pauley wrote his opinion that raised
serious questions about the claimed usefulness of telephone metadata in each of the
terrorist plots cited by Judge Pauley. That
report must have been available to Judge
Pauley.20 Pauley does at least acknowledge
that, “Perhaps this case shows how FISC
decisions may effect every American—and
perhaps their interests should have a voice
in the FISC.”21 Finally, while Judge Pauley
seems to be unforgiving of Mr. Snowden’s
transgressions, he is full of forgiveness for
the NSA’s “missteps.” He writes that while
there have been “unintentional violations
of guidelines” they “appear to stem from
human error.”22
The record evidences something more
disturbing than human error.
Evidence of Abuse

The Foreign Intelligence Surveillance
Court (FISC): (1) meets in secret; (2) so far
has allowed only the government to appear
before them; and (3) publishes almost none
of their opinions. Additionally, any abuses
by the NSA that the FISC is intended to
oversee are reported only by the NSA itself. How can a constitutional system, with
three separate branches of government,
each intended to check the excesses of the
other, allow one branch to function under
an “honor system” in the name of national security? With some of the basic characteristics of an independent judiciary absent, and with such enormous powers, one
would think the FISC would make Constitutional scholars in Congress, and on the
Court itself, somewhat uncomfortable. Two
of those judges have been very clear.
The Walton and Bates Opinions23
In a recently declassified opinion, Judge
Reggie Walton of the FISC has written that,
since the earliest days of the FISC-authorized collection of call detail records by
the NSA, the NSA has on a daily basis,
accessed the BR (bulk records) metadata for purposes of comparing thousands
of non-RAS (reasonable, articulable, suspicion) -approved telephone identifiers
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on its alert list against the BR metadata in order to identify any matches. Such
access was prohibited by the governing
minimization procedures under each of
the relevant Court orders.24
Walton went on to conclude:
In summary, since  January 15, 2009, it
has finally come to light that the FISC’s
authorizations of this vast collection program have been premised on a flawed
depiction of how the NSA uses BR metadata. This misperception by the FISC existed from the inception of its authorized
collection in May 2006, buttressed by repeated inaccurate statements made in
the government’s submissions, and despite a government-devised and Courtmandated oversight regime. The minimization procedures proposed by the government in each successive application
and approved and adopted as binding
by the orders of the FISC have been so
frequently and systemically violated that
it can fairly be said that this critical element of the overall BR regime has never
functioned effectively.25
Judge Walton concluded that he had no
confidence that the Government was serious about adhering to the Court’s orders,
and ordered the NSA to seek FISC approval on a case-by-case basis before conducting any further queries of the bulk telephony metadata collected pursuant to Section
1861 orders.26 This approval procedure remained in place from March 2009 to September 2009.
In October 2011, the then presiding judge of the FISC, Judge John Bates,
found that the government had misrepresented the scope of its targeting of internet communications pursuant to 50 U.S.C.
§ 1881a. Judge Bates wrote: “the Court
is troubled that the government’s revelations regarding NSA’s acquisition of Internet transactions mark the third instance in
less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major
collection program.”27
Review Panel Recommendations

By August 12, 2013, President Obama
was concerned enough about the political and constitutional implications of
Snowden’s disclosures concerning NSA
surveillance that he directed the establishment of the Review Group on Intelligence
and Communications Technologies. On December 12, 2013, that group offered President Obama forty-six very solid and reasonable recommendations for bolstering
the accountability of the intelligence community and restoring public confidence in
that area.28 Among the recommendations
THE VERMONT BAR JOURNAL • SPRING 2014

were the following:
• The NSA should cease keeping a massive phone record database that includes nearly every phone call made
and received in the USA.29
ª Legislation should be enacted requiring information about surveillance
programs to be made available to the
Congress and to the American people
to the greatest extent possible (subject only to the need to protect classified information).30
• Tougher standards should be created
for spying on foreign leaders, such as
asking if there is a security threat.31
• We should fully support and not undermine efforts to create encryption
standards and not in any way subvert,
undermine, weaken, or make vulnerable generally available commercial
software, that is to say, no more “back
door” to Google and Yahoo.32
• A public interest advocate should be
named to represent civil liberties and
privacy interests before the Foreign
Intelligence Surveillance Court.33
• A civilian should be appointed to be
the next director of the NSA, and the
position should be a position that requires Senate confirmation.34
• Leadership of the U.S. military’s Cyber Command and the NSA should be
split.35
• Very importantly, creation of H