Former NSA Head: Americans Have No Reasonable Expectation of Privacy

NSA Today: 'Orwellian Technology,' 'Stuff of Science Fiction'

Former NSA Director Michael Hayden says that collecting billions of phone records in no way violates the Fourth Amendment and that Americans should have no reasonable expectation of privacy.

Major Garrett was guest-hosting CBS's Face the Nation Sunday discussing Judge Richard Leon's recent ruling that collection of telephony metadata is unconstitutional. For Hayden, though, it is "inherently constitutional." Still, he said, our history "demands that we be alarmed."

The full transcript is below. 

Garrett: I want to read to you one segment of a ruling handed down by Judge Richard Leon here in Washington, U.S. District judge who said, 'It's one thing to say that people expect phone companies to occasionally provide information to law enforcement. It's quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence gathering operation with the government.' What do you respond to that? 

Hayden: Well, first of all, I would respond that Judge Leon was looking at the acquisition of the data and not how the data was used. And so this is not a broad fishing expedition, granted, millions, billions of phone records a day are acquired by the National Security Agency. But what follows, Major, is really important. What happens to that data? How often is that data touched? And the truth is, it's touched two to three hundred times per year and only based upon a reasonable articulable suspicion that that number is affiliated with terrorism.

Garrett: But Judge Leon also talks about, as you said, the acquisition of this data, and he said underlying Supreme Court precedent, which dates back to a case from 1979, in no way imagined this world that we're currently living in. Let me read it again and this is his words, they're interesting. "The almost Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived of in 1979. The notion that the government could collect similar data on hundreds of millions of people and retain that data for a five-year period updating it with new data every day in perpetuity was at best in 1979, the stuff of science fiction." Americans, General, are legitimately, it seems to me, alarmed by the scope and stature of this collection, retention and sifting. 

Hayden: Sure. Look, our history as a people demand that we be alarmed - that we be concerned about this, but our concerns should be governed. Our thinking should be focused on the facts of the case and not the emotion of the case. Again, what happens to the data? Judge Leon ignored precedent. He ignored Smith vs. Maryland, the case that you cited. He ignored that 15 FISA judges on over 30 occasions have upheld the lawfulness of this. And then Judge Pauley in the southern district of New York, within a week, issued another warning saying - or another decision saying that this was inherently constitutional. And Judge Pauley relied on precedent. Judge Leon relied on exclamation points throughout his judgment, not precedent. 

Garrett: He also said this is likely unconstitutional and this collection violates the Fourth Amendment, you disagree? 

Hayden: I do. I do. Well, I'm not a lawyer. I'm not a judge. I do know there is one controlling Supreme Court case, Smith vs. Maryland, in which the court has said in a 5-3 decision that there is no reasonable expectation of privacy over this kind of data.

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