You probably are not a terrorist. Chances are the government doesn’t even suspect you of knowing a terrorist. Even so, the National Security Agency (NSA) — without a warrant — collects information about your — and every other American’s — phone calls. Edward Snowden blew the whistle on this bulk-data-collection program.
The NSA labels what it collects metadata, as if that should make us feel better about this invasion of our privacy. That is, the NSA doesn’t monitor the contents of our calls — or so it says. Before Snowden’s revelations, the director of national intelligence James Clapper denied “the NSA collect[s] any type of data at all on millions or hundreds of millions of Americans.” Now it admits to collecting “only” the telephone numbers and the duration, dates, and times of our calls. But calling this “metadata” doesn’t change the fact that the government collects information about our private lives without warrants issued on the basis of probable cause or even a reasonable suspicion that we have committed crimes. That’s outrageous.
The government bases its data collection on the USA PATRIOT Act, passed in the wake of the 9/11 attacks, specifically Section 215, which lets the government gather information “relevant to” terrorism investigations. If you wonder how that justifies the current dragnet, you’re not alone. Some members of Congress, including an author of the Act, say the NSA’s conduct is not authorized by the Act. And now Judge Gerard Lynch, writing for a panel of judges of the U.S. Court of Appeals for the Second Circuit, says the NSA “exceeds the scope of what Congress has authorized.” (They did not rule on the section’s constitutionality.) An overjoyed Snowden said the ruling “will affect every other mass surveillance program in the U.S. going forward.”
It so happens that Section 215 will expire June 1, so Congress is studying its options. Favoring the proposed USA FREEDOM Act, some reform-minded members want the phone companies rather than the government to store the information and to require the NSA to obtain a court order to access it. Others, including libertarian-leaning members, would simply let Section 215 expire. Still others (led by Republicans Senate Majority Leader Mitch McConnell and Sen. Tom Cotton) would preserve the status quo. You need a scorecard to keep the players straight; even civil-libertarian groups disagree about the USA FREEDOM Act, which President Obama has endorsed.
There’s no telling how this will play out before the approaching deadline.
Republican Sen. Rand Paul, a presidential contender, is fulfilling his promise to filibuster any reauthorization of the bulk-data-collection program. “What you do on your phone is none of the government’s damn business,” he says. Speaking to the New Hampshire Union Leader, he added, “We are going to demand amendments and we are going to make sure the American people know that some of us at least are opposed to unlawful searches.”
U.S. Rep. Justin Amash, the libertarian-leaning Michigan Republican, also weighed in, saying “[The] Second Circuit ruling makes clear that the executive branch’s interpretation of the statute … is “unprecedented and unwarranted.”
In light of this ruling, Congress must not proceed with the latest version of the USA Freedom Act. While limiting certain types of bulk collection, the latest USA Freedom Act would authorize bulk collection of Americans’ records for the first time, thereby undoing some of the progress resulting from the Second Circuit’s decision. Instead, Congress should pass, and the president should sign, the [unamended] USA Freedom Act … that protects the liberty and privacy of all Americans while providing the intelligence community the authority necessary to deal with those who seek to harm us.
Government has no legitimate reason to scoop up everyone’s phone records, and deputizing the phone companies is no improvement. The NSA simply cannot be trusted to respect our privacy. If the government suspects a specific individual of plotting to commit violence, it should do what it’s supposed to do: obtain a warrant from an independent judge after presenting evidence justifying an investigation. Remember: we’re innocent until proven guilty. Government must not be allowed to gather information on everyone simply because it has the technological means to do so.
Our freedom and privacy are too important.
Sheldon Richman is a Research Fellow at the Oakland, CA based Independent Institute.