Skip to main content

Supreme Court must protect our privacy from the government

By Marc Rotenberg, Special to CNN
July 17, 2013 -- Updated 1530 GMT (2330 HKT)
Marc Rotenberg asks: it legal for the government to collect information about people posing no national security threat?
Marc Rotenberg asks: it legal for the government to collect information about people posing no national security threat?
STORY HIGHLIGHTS
  • Marc Rotenberg: Electonic Privacy group wants Supreme Court to step in on privacy
  • He says secret court order makes Verizon give call record info to National Security Agency
  • He says: Patriot Act powers can only be used in certain circumstances
  • Rotenberg: Supreme Court has ultimate authority to say what law allows -- and it is not this

Editor's note: Marc Rotenberg is President of the Electronic Privacy Information Center (EPIC) and teaches information privacy law at Georgetown University Law Center. He frequently testifies before Congress on emerging privacy issues.

(CNN) -- Last week the Electronic Privacy Information Center filed a petition with the Supreme Court asking it to stop the government's collection of telephone records of Verizon customers. It was not a decision we took lightly. But as an organization dedicated to protecting privacy, we had no choice.

Of all the recent revelations about the government's surveillance activities, the most significant is a secret court order that required Verizon to provide to the National Security Agency -- on an ongoing basis -- the call detail records on all of its customers.

Marc Rotenberg
Marc Rotenberg

Not since the congressional hearings of the Church Committee -- the Senate committee that investigated widespread intelligence abuses in the 1970s -- has there been evidence of such extensive spying by the U.S. government on the American public. But unlike then, the digital data of the modern telephone network allows for an extraordinary sorting and sifting of digital information today.

A phone number is easily linked to a person, perhaps a doctor, a minister, a family member, or a close friend. Call detail records can also reveal where people are and who they are with. Such information can be very useful when tracking a particular target in a criminal or intelligence investigation, but collecting such data on all Americans who have a telephone is without precedent.

In our filing with the Supreme Court, the Electronic Privacy Information Center asked a simple question that we hope the Court will answer: Is it legal for the government to collect so much information about so many people suspected of no threat to national security?

According to the law -- section 215 of the Patriot Act -- the government is only allowed to obtain such information if it is "relevant" to an "authorized investigation" and if its use is for very narrow purposes. How could it possibly be that all of the customers of Verizon could be subject to an authorized investigation of the U.S. government?

To us that seems impossible. And that is also the view of some of those who wrote the law and who served on the court that applies the law.

NSA spying on your calls
Secret spying: From critic to supporter
Brok: NSA's spying on EU 'out of control'

Rep. James Sensenbrenner, R-Wisconsin, the original author of the Patriot Act, recently said he was "extremely disturbed" about the news of the Verizon order and said it was "not consistent with the Patriot Act."

Retired Judge James Robertson, who served on the secretive Foreign Intelligence Surveillance Court, said he was "stunned" to learn about the court's broad authorities.

The views of Sensenbrenner and Robertson are shared by many legal scholars. It is simply inconceivable that Congress could grant legal authority for the routine surveillance of all of our telephone records.

And the secrecy surrounding these activities -- not only was the court order kept secret, but so too was the legal justification -- should set off alarm bells. If the government has a good justification for the program, it should not be difficult to provide a public explanation, even if some of the details must be withheld.

Some are surprised that our organization went directly to the Supreme Court. They point out that the Supreme Court prefers hearing disputes after the issues have been considered by lower courts. But under the special rules of the secret court that issued the Verizon order, we had no choice. Only the government or Verizon could have objected to the order of the secret court. They didn't, so we turned to the one Court that has the ultimate authority to say what the law allows.

And if there is one case that justifies review under the Supreme Court's "mandamus" standard, our organization's challenge to the NSA's domestic surveillance program is that case.

Over the next month, we look forward to working with legal scholars, technical experts and others who have expressed support for our petition. They will be filing friend of the court briefs to explain to the Supreme Court in more detail the important issues in our case. We anticipate that the Court will consider our arguments when it returns in early October.

Still, there is more to do. We believe that the NSA's decision to undertake domestic surveillance has also triggered a provision of law that requires the agency to take public comments. We believe that the public should have the opportunity to express its views on the program. Whether you oppose or support the NSA's domestic surveillance program, your views should be heard.

Follow us on Twitter @CNNOpinion.

Join us on Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of Marc Rotenberg.

ADVERTISEMENT
Part of complete coverage on
July 30, 2014 -- Updated 1505 GMT (2305 HKT)
Gabby Giffords and Katie Ray-Jones say "Between 2001 and 2012, more women were shot to death by an intimate partner in our country than the total number of American troops killed in the Iraq and Afghanistan wars combined."
July 29, 2014 -- Updated 2357 GMT (0757 HKT)
Alan Elsner says Secretary Kerry's early cease-fire draft was leaked and presented as a final document, which served the interests of hard-liners on both sides who don't want the Gaza war to stop.
July 30, 2014 -- Updated 1158 GMT (1958 HKT)
Vijay Das says Medicare is a success story that could provide health care for everybody, not just seniors
July 30, 2014 -- Updated 1458 GMT (2258 HKT)
Rick Francona says Israel seems determined to render Hamas militarily ineffective.
July 30, 2014 -- Updated 1137 GMT (1937 HKT)
S.E. Cupp says the entrepreneur and Dallas Mavericks owner thinks for himself and refuses to be confined to an ideological box.
July 30, 2014 -- Updated 1311 GMT (2111 HKT)
A Christian group's anger over the trailer for "Black Jesus," an upcoming TV show, seems out of place, Jay Parini says
July 29, 2014 -- Updated 1650 GMT (0050 HKT)
LZ Granderson says the cyber-standing ovation given to Robyn Lawley, an Australian plus-size model who posted unretouched photos, shows how crazy Americans' notions of beauty have become
July 29, 2014 -- Updated 2041 GMT (0441 HKT)
Carol Dweck and Rachel Simmons: Girls tend to have a "fixed mindset" but they should have a "growth mindset."
July 28, 2014 -- Updated 1156 GMT (1956 HKT)
A crisis like the Gaza conflict or the surge of immigrants can be an opportunity for a lame duck president, writes Julian Zelizer
July 26, 2014 -- Updated 1822 GMT (0222 HKT)
Carol Costello says the league's light punishment sent the message that it didn't consider domestic violence a serious offense
July 28, 2014 -- Updated 1251 GMT (2051 HKT)
Danny Cevallos says saggy pants aren't the kind of fashion statement protected by the First Amendment.
July 28, 2014 -- Updated 1852 GMT (0252 HKT)
Margaret Hoover says some GOP legislators support a state's right to allow same-sex marriage and the right of churches, synagogues and mosques not to perform the sacrament
July 28, 2014 -- Updated 1831 GMT (0231 HKT)
Megan McCracken and Jennifer Moreno say it's unacceptable for states to experiment with new execution procedures without full disclosure
July 28, 2014 -- Updated 1850 GMT (0250 HKT)
Priya Satia says today's drones for bombardment and surveillance have their roots in the deadly history of Western aerial control of the Middle East that began in World War One
July 28, 2014 -- Updated 1635 GMT (0035 HKT)
Jeff Yang says it's great to see the comics make an effort at diversifying the halls of justice
July 26, 2014 -- Updated 1555 GMT (2355 HKT)
Rick Francona says the reported artillery firing from Russian territory is a sign Vladimir Putin has escalated the Ukraine battle
July 27, 2014 -- Updated 1822 GMT (0222 HKT)
Paul Callan says the fact that appeals delay the death penalty doesn't make it an unconstitutional punishment, as one judge ruled
July 24, 2014 -- Updated 2225 GMT (0625 HKT)
Pilot Robert Mark says it's been tough for the airline industry after the plane crashes in Ukraine and Taiwan.
July 25, 2014 -- Updated 1510 GMT (2310 HKT)
Jennifer DeVoe laments efforts to end subsidies that allow working Americans to finally afford health insurance.
July 26, 2014 -- Updated 1533 GMT (2333 HKT)
Ruti Teitel says assigning a costly and humiliating "collective guilt" to Germany after WWI would end up teaching the global community hard lessons about who to blame for war crimes
July 25, 2014 -- Updated 1245 GMT (2045 HKT)
John Sutter responds to criticism of his column on the ethics of eating dog.
July 25, 2014 -- Updated 1302 GMT (2102 HKT)
Frida Ghitis says it's tempting to ignore North Korea's antics as bluster but the cruel regime is dangerous.
July 25, 2014 -- Updated 1850 GMT (0250 HKT)
To the question "Is Putin evil?" Alexander Motyl says he is evil enough for condemnation by people of good will.
July 24, 2014 -- Updated 1803 GMT (0203 HKT)
Laurie Garrett: Poor governance, ignorance, hysteria worsen the Ebola epidemic in Sierra Leone, Guinea, Liberia.
July 24, 2014 -- Updated 1349 GMT (2149 HKT)
Patrick Cronin and Kelley Sayler say the world is seeing nonstate groups such as Ukraine's rebels wielding more power to do harm than ever before
July 23, 2014 -- Updated 2205 GMT (0605 HKT)
Ukraine ambassador Olexander Motsyk places blame for the MH17 tragedy squarely at the door of Russia
July 24, 2014 -- Updated 1142 GMT (1942 HKT)
Mark Kramer says Russia and its proxies have a history of shooting down civilian aircraft, often with few repercussions
July 24, 2014 -- Updated 1853 GMT (0253 HKT)
Les Abend says, with rockets flying over Tel Aviv and missiles shooting down MH17 over Ukraine, a commercial pilot's pre-flight checklist just got much more complicated
July 24, 2014 -- Updated 1317 GMT (2117 HKT)
Mark Kramer says Russia and its proxies have a history of shooting down civilian aircraft, often with few repercussions
July 24, 2014 -- Updated 1637 GMT (0037 HKT)
Gerard Jacobs says grieving families and nations need the comfort of traditional rituals to honor the remains of loved ones, particularly in a mass disaster
July 24, 2014 -- Updated 1413 GMT (2213 HKT)
The idea is difficult to stomach, but John Sutter writes that eating dog is morally equivalent to eating pig, another intelligent animal. If Americans oppose it, they should question their own eating habits as well.
July 23, 2014 -- Updated 1630 GMT (0030 HKT)
Bill van Esveld says under the laws of war, civilians who do not join in the fight are always to be protected. An International Criminal Court could rule on whether Israeli airstrikes and Hamas rocketing are war crimes.
July 30, 2014 -- Updated 1209 GMT (2009 HKT)
Gordon Brown says the kidnapped Nigerian girls have been in captivity for 100 days, but the world has not forgotten them.
ADVERTISEMENT