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The Spying on Americans Never Ended

Similar to phone tracking reports in 2006, reports this week reveal the NSA is again collecting people’s phone records — a move that raises serious legal and constitutional concerns.

Published: June 7, 2013

Published in The Wall Street Journal.

Amer­ic­ans follow­ing the news this week may be exper­i­en­cing an unset­tling sense of déjà vu. In 2006, news reports revealed that the Defense Depart­ment’s National Secur­ity Agency was collect­ing records of Amer­ic­ans’ domestic tele­phone calls. The Bush admin­is­tra­tion never admit­ted it, and many assumed that the prac­tice stopped under the Obama admin­is­tra­tion. But on Tues­day, the Guard­ian news­pa­per in Britain repor­ted on a secret court order show­ing that a subsi­di­ary of Veri­zon was required to turn over all of its custom­ers’ records for a three-month period. Members of Congress soon confirmed this was part of a larger collec­tion program dating back seven years.

Congres­sional Repub­lic­ans, joined by the Demo­cratic chair­man of the Senate Intel­li­gence Commit­tee, Dianne Fein­stein, have embarked on an aggress­ive “noth­ing to see here” campaign. They argue that the bulk collec­tion is a lawful and useful tool for combat­ing terror­ism. Yet the contro­versy contin­ues—and for good reason.

The most tangible prob­lem is the inva­sion of Amer­ic­ans’ privacy. The so-called metadata collec­ted by the NSA includes inform­a­tion about our calls, such as the numbers we call, the numbers of those who call us, when the calls are made, and for how long.

This inform­a­tion may seem relat­ively trivial at first blush. Yet, pieced together, these details can paint a detailed and sens­it­ive picture of our private lives and our asso­ci­ations. Calls to a ther­ap­ist’s office, Alco­hol­ics Anonym­ous, repeated late-night calls to a friend’s wife—the exist­ence of these calls can reveal as much in some instances as the calls’ actual content.

Sen. Saxby Cham­b­liss (R., Ga.) asser­ted that an indi­vidu­al’s phone metadata, once collec­ted, is not actu­ally reviewed unless the govern­ment first estab­lishes prob­able cause and gets a secret court order. But he did not say whether the govern­ment employs computer programs to probe the metadata and identify cases when “prob­able cause” may exist. That would be the equi­val­ent of send­ing a dog into someone’s house to sniff for drugs and apply­ing for a warrant if the dog barked. In any case, history teaches that the tempta­tion for the govern­ment to use inform­a­tion, once gathered, is irres­ist­ible.

Another concern is legal­ity. The program is taking place under Section 215 of the Patriot Act, which allows the govern­ment to obtain records and other “tangible things” only if they are relev­ant to an author­ized foreign-intel­li­gence or inter­na­tional-terror­ism invest­ig­a­tion. It is simply not possible that all of the phone records of every Amer­ican are relev­ant to a specific author­ized invest­ig­a­tion. Such an inter­pret­a­tion of “relev­ance” (or of “invest­ig­a­tion”) would render Section 215's limit­a­tion utterly mean­ing­less.

There may be a consti­tu­tional concern, as well. The secret court order obtained by the Guard­ian does not specify whether collect­ible metadata includes cell­phone-loca­tion inform­a­tion, but the govern­ment believes it does. Although some courts have held that the govern­ment does not need a warrant to obtain cell­phone-loca­tion data, others say warrant­less collec­tion viol­ates the Fourth Amend­ment because the inform­a­tion is so sens­it­ive—a compre­hens­ive record of a person’s move­ments.

To be sure, a court has signed off on the program. But that does not make it legal. Courts occa­sion­ally make mistakes. When that happens, the losing party has the right to appeal, and the erro­neous decision is reversed. That process cannot happen when a secret court considers a case with only one party before it. It has taken seven years for the Amer­ican public to learn about this inter­pret­a­tion—and since the govern­ment was the only party to the case, no one can appeal. The court’s order illus­trates the funda­mental inad­equacy of secret courts and secret law when it comes to protect­ing Amer­ic­ans’ rights.

The program’s defend­ers in Congress say it is neces­sary to identify people with whom known or suspec­ted terror­ists are asso­ci­at­ing. If the govern­ment is invest­ig­at­ing a terror­ist suspect, however, Section 215 allows the govern­ment to obtain that person’s records and learn who his or her contacts are. There is no imagin­able need to collect every Amer­ic­an’s phone records for this purpose. As for Sen. Cham­b­lis­s’s claim that this program has stopped a terror­ist attack, he will surely refuse to disclose any further inform­a­tion on the ground that it is clas­si­fied. There is no way to eval­u­ate whether his claim is accur­ate, let alone whether the plot could have been thwarted using more targeted means.

Still, let’s assume that the govern­ment’s program has helped identify one or more terror­ist plots. Its useful­ness would not justify viol­at­ing the law; the govern­ment should instead seek to change the law. Whether the program’s useful­ness would justify the incur­sion into Amer­ic­ans’ privacy is a ques­tion of balan­cing compet­ing policy prior­it­ies—a core ques­tion of public policy that is for the Amer­ican people, not a hand­ful of intel­li­gence offi­cials, to debate and decide.

Why were we not given that oppor­tun­ity? For seven years, the govern­ment deemed that releas­ing its legal inter­pret­a­tion of the Patriot Act could cause grave harm to national secur­ity. Yet it is unclear how Amer­ic­ans would change their beha­vior if they knew the govern­ment could obtain their tele­phonic metadata. Would they stop using the tele­phone? If, indeed, publi­ciz­ing the program would render it useless, then we should expect the govern­ment to aban­don the program now that it has been disclosed. Yet it will surely continue.

The rule of law and our privacy are too import­ant to be cast aside with the asser­tion that national secur­ity requires it. And they are too import­ant to be manip­u­lated in secret, whether by our govern­ment or by a secret court. A public debate on the govern­ment’s surveil­lance author­it­ies is long over­due. The silver lining to this week’s revel­a­tions is that we may finally begin to have it.

Ms. Goitein is co-director of the Liberty and National Secur­ity Program at the Bren­nan Center for Justice in New York.