We are again facing the fallacy of the false choice. Those who are concerned about protecting the privacy rights of Americans (including this writer) should not have to choose between protection of those rights and avoiding another 9/11 terrorist attack.
The National Security Agency went too far when it established a program to collect the bulk metadata of all telephone calls made by Americans, on the thin reed that such collection was “relevant,” as that word was used in Section 215 of the Patriot Act, to finding and preventing terrorist acts in the U.S. But a recent 97-page decision by the New York-based 2nd Circuit Court of Appeals, applauded by privacy advocates, actually was a narrow legal decision based on statutory construction. The court found that when Congress passed the act that explicitly allowed collection of “relevant” telephone records information of U.S. citizens, the word “relevant” was not intended to mean all records, regardless of whether there was a specific investigation of a possible call from a suspected foreign terrorist or someone affiliated with a terrorist organization.
But note that, despite the position taken by supporters of Edward Snowden and other anti-NSA challengers, the 2nd Circuit panel did not rule that the program was a violation of the Fourth Amendment or in any way unconstitutional. The court decision allowed access to the metadata, with private companies retaining them. It actually seemed to invite the metadata program to continue, while requiring Congress to be more specific in the circumstances and evidence of a terrorist threat justifying a search of the telephone companies’ bulk metadata.
Americans don’t want to have to choose between their privacy rights and protection from another 9/11, or at least maximum efforts to find terrorist threats before they become a reality.
The answer avoiding this false choice appears to be the USA Freedom Act, one version of which passed the House of Representatives last week and is now under consideration by the Senate.
The USA Freedom Act would ban mass government collection of telephone metadata, as privacy advocates have demanded. But it would allow such metadata to be retained by telephone companies for a minimal period of time. (Many intelligence experts believe the time period should be at least five years). Under the USA Freedom Act, that data could be accessed only if the government can identify a specific terrorist threat (or communication from someone associated with a known terrorist organization). Thus, the search of the data would be targeted — more like a laser beam looking for a needle in the haystack.
I served from 2006-07 on the Privacy and Civil Liberties Oversight Board, appointed by then-President George W. Bush as the sole Democrat on the five-member board created by the Intelligence Reform and Terrorism Prevention Act and recommended by the 9/11 Commission. I was “read in” and observed in real time the work of the NSA and other intelligence agencies in real time trying to anticipate and stop a future terrorist attack on the homeland.
While I had my doubts about the legality of some of what I saw, I had nothing but admiration for the many minimization procedures within these agencies to prevent anyone from even approaching constitutional violations of privacy rights of American citizens. Indeed, at times I wondered whether they were overly careful and concerned about going over the line to the point where they might miss stopping another attack.
I came away from my experience wishing every American could see these patriotic Americans working 24/7 to protect all of us from another 9/11 and how careful they were, while they were doing this work, to protect our civil liberties and constitutional rights.
The USA Freedom Act also contains needed reforms, such as making the Foreign Intelligence Surveillance Court more transparent in its decision-making and to assuring that there is a privacy advocate making presentations before the secret court to oppose overly broad requests for data.
Sen. Patrick Leahy’s (D-Vt.) Senate version of the USA Freedom Act appears to strike the right balance, the answer to the false choice of privacy rights vs. security. It allows us to have both.
We must have both.
Lanny Davis served as special counsel to former President Clinton and is principal in the Washington, D.C. law firm of Lanny J. Davis & Associates, and is Executive Vice President of the strategic communications firm, LEVICK. He is the author of a recently published book, Crisis Tales: Five Rules for Coping with Crises in Business, Politics, and Life (Threshold Editions/Simon and Schuster).