Kurt Opsahl is senior staff attorney for the Electronic Frontier Foundation, a nonprofit San Francisco digital rights group. Opsahl spoke to the Trib regarding the organization's ongoing attempts to combat domestic surveillance.
Q: The federal government's electronic snooping is drawing a lot of attention at the moment, but hasn't your organization been fighting these types of activities for a long time?
A: Yes. We've been on one case, Jewel v. NSA, for the past five years. The EFF sued the NSA and other government agencies on behalf of AT&T customers to stop the unconstitutional surveillance of their records. It's been a lengthy case, a difficult case; the NSA has attempted to get the case dismissed under the state secrets privilege. It's on appeal now. All we want is to have the court rule that the surveillance is illegal.
Q: What arguments do you bring to these types of cases?
A: It's been a great part of the American tradition to be skeptical of government power, to be skeptical of government secrecy and to protect the privacy and security of our citizens. That's why we have the Fourth Amendment (prohibiting unreasonable search and seizure). We believe these (domestic surveillance) programs are unconstitutional, they exceed statutory authority and they amount to general warrants that aren't specific but allow the government to troll through people's lives.
Q: What about the government's contention that these surveillance programs are acceptable because they concentrate on phone records rather than the content of the calls themselves?
A: I think there's a lot of misinformation by some aspects of the government that metadata doesn't matter, that it's not invading your privacy. Who you call, how long you spoke, where you called from — over time that paints a picture of your life. You've placed a large number of calls to a particular person and suddenly you stop. People can infer that you broke up with your girlfriend. Even a single call can reveal a lot. If someone places a call on the Golden Gate Bridge to a suicide hotline, it wouldn't be very difficult to determine what was being discussed. The government keeps insisting that these programs aren't invasive. If they aren't invasive, then why do they want them? What good would they do them?
Q: Are you encouraged at all by the fact that two members of the Senate Intelligence Committee (Ron Wyden, D-Ore., and Mark Udall, D-Colo.) have voiced concerns over this type of data collection — even though they're not permitted to discuss what specific elements of the classified program trouble them?
A: I would say more encouraged by Rep. (Jim) Sensenbrenner (R-Wis.), a co-author of the Patriot Act, coming out and saying that Section 215 of the Patriot Act does not authorize this kind of blanket collection of records, that the (collected) records have to be relevant to an authorized investigation. That was very gratifying to hear.
Q: Do you believe this type of domestic surveillance poses a legitimate threat to our democracy?
A: The Fourth Amendment is part of the founding ideals of this country. Colonists threw off the yoke of England because of the use of general warrants. This is a very foundational aspect of American democracy. We shouldn't be sacrificing it.
Eric Heyl is a staff writer for Trib Total Media (412-320-7857 or firstname.lastname@example.org).