Now that the U.S. House has voted to reform the government’s sweeping telephone surveillance program, the Senate should quickly do the same. It’s a first step in a long overdue examination of government snooping on Americans.
A determination to keep the country safe from the growing threat of terrorism produced the excesses of the National Security Agency. In the process, the agency not only violated the nation’s fundamental sense of privacy, but it also also resorted to methods deemed illegal by a federal appellate court earlier this month.
The reform bill does not contain all the safeguards that privacy advocates want, but it’s a start. It prohibits the NSA’s bulk collection of “metadata,” which charts all the telephone calls made by Americans. Removing the government’s authority to collect the records is a plus, although the bill stops short of denying the information to the government.
If it becomes law, as it should — it has the support of the Obama administration and some of the most conservative members of Congress — the information would be put in the hands of the private sector, most likely telecommunication firms like AT&T and Verizon.
Spy and law-enforcement agencies such as the FBI could then request the data relevant to an investigation — if they get the approval of the Foreign Intelligence Surveillance Court, which conducts most of its business in secret.
For privacy advocates, this change is hardly reassuring. The FISA Court, as it’s known, has been a pushover for the government, rarely denying its aggressive efforts to obtain telecommunications data. One reason for this is that the government presents its case in secret and without the court hearing opposing views. This departure from standard judicial procedure is one of the fundamental flaws of the legislation involving the secret court, but that is an argument — and a reform — for another day.
The collection of the data itself represents the most startling departure from standard protections against government intrusion. The government sweeps of metadata constitute a “general warrant” — arguably, a violation of the Fourth Amendment against unreasonable search and seizure and the probable-cause standard required in criminal cases.
Still, the bill passed by the House represents the first fruits of the Edward Snowden revelations, which shocked most Americans:
▪ First, because of the breadth of the government’s snooping, it was a sweeping take of telecommunications data.
▪ Second, because the entire effort was carried out in secret.
▪ Third, because the government relied on a vague provision in the Patriot Act that allowed collection of records deemed “relevant” to a national-security case. Government lawyers unilaterally interpreted that to mean collection of all records, providing that only those that later turn out to be relevant are fully scrutinized.
Earlier this month, the U.S. Court of Appeals for the Second Circuit found this approach particularly outrageous. If that’s what the government wants to do, the court reasoned, “We could expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language.”
Precisely. Now the House of Representatives has had the debate, as the court suggested, and decided to take the government out of the collection business. The Senate should follow suit before the entire Patriot Act expires at the end of the month.