This article examines the controversy surrounding bulk telephone metadata collection that has ensued since their disclosure in June 2013. The author analyzes the “use of tangible things” provision to acquire telephony metadata, including limitations on this practice, the statutory issues such a practice raises, and the ways in which the Foreign Intelligence Surveillance Court has decided on the issue since 2006. This article concludes that the Executive’s response, as delineated in a January 2014 speech, has yet to be fully implemented; however, the author argues that the disclosures have nonetheless raised new questions about the relative values of privacy and transparency in US intelligence.
The cyber threat is the most pervasive and pernicious threat facing the United States today. Its mention does not immediately conjure visions of the catastrophic horrors that would result from an attack using a weapon of mass destruction, but today’s cyber threat is a very real and present danger. As of September 14, 2009, more than 10,450,000 U.S. residents had been victimized by identity theft in 2009 alone, and that number increases by one victim each second.2 Fifteen million victims will lose more than fifty billion dollars each year.3 Specific threats such as identity and consumer fraud allow us to quantify and understand part of the cyber threat in terms that allow the U.S. government,4 corporate America,5 consumer groups, and individuals6 to take preventive action. However, the growing number of victims would clearly suggest we have not effectively solved the problem, even if we are starting to comprehend its scope.
The cyber threat to U.S. national security, economic security, and public health and safety is far more amorphous and less susceptible of comprehension than its kinetic analogs. Popular media productions such as 247 and Live Free or Die Hard8 have depicted sophisticated cyber intrusions that intentionally caused aircraft collisions, a nuclear power plant meltdown, a compromise of White House security and communications…
The USA PATRIOT Act has sparked intense public debate, with proponents claiming that the Act is a necessarily hard-minded response to a national crisis, while opponents see unwarranted, even opportunistic, expansion of state power. Perhaps no provision of the Act has generated more controversy than §215, which authorizes the FBI to seek a court order compelling the production of “any tangible things” relevant to certain counterintelligence and counterterrorism investigations. Like many other provisions of the USA PATRIOT Act, §215 will expire on December 31, 2005, unless reauthorized by Congress. The controversy, therefore, is likely to intensify over the coming months.