Over the past seven months, as the leaks disclosed by former National Security Agency contractor Edward Snowden have generated immense controversy and the NSA has been the subject of unprecedented scrutiny, one thing has become more and more clear: the bulk collection of telephone metadata serves no useful purpose. And according to a federal judge, it’s probably unconstitutional.
In a 68-page opinion on a federal lawsuit challenging the program, Judge Richard Leon writes, “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every citizen for purposes of querying it and analyzing it without judicial approval.”
Judge Leon also noted that the government failed to cite a single case where the intelligence obtained through metadata collection was used to stop an imminent attack.
In addition to the telephone metadata collection, another program disclosed a few weeks ago is a program codenamed Dishfire, which as of mid-2011, was collecting nearly 200 million text messages per day. The sheer scope of these programs is incredibly concerning. A reading of history will show that unless strict limits are set on government powers, they will invariably be abused.
The spying on and harassment of political opponents during the Nixon Administration is the most obvious example of government abuse of power; but even the recent “Bridgegate” scandal in which New Jersey Governor Chris Christie’s staff used executive power to settle a score with a rival politician by closing toll lanes connecting to the George Washington Bridge reminds us that even if there is a remote potential for abuse, meaningful oversight of government power is crucial.
And with the massive potential for abuse evident in the bulk collection program combined with the intense secrecy surrounding it, it should come as no surprise that there have already been serious abuses, some of which involved NSA employees using their access to spy on their love interests.
In an effort to alleviate the concerns of the public regarding the NSA’s surveillance activities, President Obama gave a speech at the Justice Department on Jan. 17, where he proposed certain reforms for the intelligence programs. Those reforms included having a public advocate in the Foreign Intelligence Surveillance Court, removing metadata control from the NSA, stricter standards for accessing metadata, and narrowing authorizations for spying on the leaders of countries allied with the United States.
While the proposed reforms are steps in the right direction, there have been no specifics put forth as to how these reforms will be implemented. The question of which third party will hold on to the metadata is left unanswered for now.
And while having a public advocate in the FISA Court is unquestionably a good thing, it’s important to remember that the FISA court operates in secret and its past record in providing meaningful judicial review of government requests for information has been pathetic: According to a Wall Street Journal report published in June of last year, the FISA court has rejected only 11 out of 33,900 government surveillance requests (a rate of 0.03 percent.) And telephone metadata of American citizens will continue to be collected in bulk, despite the President’s appointed advisory panel concluding in their report that the bulk metadata collection played a minimal role in stopping any terrorist plots.
While there are numerous concurrent threats that the intelligence community has to confront and those threats undoubtedly call for some electronic surveillance, that surveillance should not be indiscriminate. American citizens (and foreign nationals) who pose no threat to our national security also have a right to expect that every call they make isn’t logged and recorded into a database.
And in light of the evidence suggesting that there is little valuable intelligence to be gained from the program, the potential for abuse that exists and the program likely being illegal under the Constitution, what’s needed is not for the program to be reformed, but for it to be ended in it’s entirety.
There is no logical reason to maintain this program when it’s proven useless at it’s ostensible goal – protecting Americans from imminent attacks.