Five months after Americans learned that information about their telephone calls was being indiscriminately scooped up by the National Security Agency, Congress seems poised to limit the bulk collection of telephone “metadata” — the source, destination, and duration of calls, but not their contents. That’s a positive development.
But there is a big difference between legislation approved by the Senate Intelligence Committee, which would make minor improvements to the program, and a better proposal by Sen. Patrick Leahy (D., Vt.) and Rep. James Sensenbrenner (R., Wis.) that would bring the collection of phone records into compliance with the letter and spirit of the Fourth Amendment’s ban on unreasonable searches and seizures.
Sen. Dianne Feinstein (D., Calif.), the head of the Intelligence Committee, rightly says that the committee’s bill “increases privacy protections and public transparency” in the phone records program. But the protections are minimal, and in return for the minor changes, Congress would give its explicit approval for the wholesale acquisition of metadata by the government.
The Leahy-Sensenbrenner bill would allow the government to acquire phone data only as part of an investigation tied to a specific suspected terrorist or foreign agent, or an individual in contact with him. Bulk collection would end.
Obama Administration officials insist the metadata program is vital because it assembles a “haystack” that makes it possible for a computer search to extract the “needle” of evidence leading to the perpetrators of a terrorist plot.
The government persuaded the secret Foreign Intelligence Surveillance Act Court that such a dragnet was legal under a section of the Patriot Act that authorizes the acquisition of records reasonably believed to be “relevant to an authorized investigation” of espionage or terrorism.
The FISA court also noted that the Supreme Court has afforded no privacy protection to data that individuals turn over to “third parties” such as phone companies. But that interpretation of the Fourth Amendment has been rendered obsolete by advances in electronic information-gathering.
It’s easy to lose sight of the question at the heart of this debate: whether the government should be able, without showing probable cause, to obtain and store information that can often provide as wide a window on the private lives of Americans as the actual contents of their phone calls.
Senator Feinstein and other defenders of the program emphasize that the database is searched only when there is “reasonable, articulable” suspicion of a link to terrorism. The Intelligence Committee bill would further discourage abuse by mandating an annual public accounting of the number of queries, and by limiting the number of people at the NSA who may authorize them.
But the mere possession of such information by government is unsettling. There is no guarantee that some employees with access to private information won’t betray their trust. And claims that the metadata program led to the disruption of a significant number of terrorist attacks seem exaggerated.
The metadata program intrudes on the privacy of virtually every American. It needs to be ended, not mended.
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