Two days after a federal judge ruled that the National Security Agency’s mass collection of telephone records probably violated the Constitution, a task force has suggested changes in the program. Quick take: Its suggestion that the so-called Section 215 program (named for a provision of the Patriot Act) should be mended, not ended, won’t placate all of the agency’s critics.
The task force says that “the current storage by the government of bulk metadata” — information about the source, destination and duration of phone calls, but not the content — “creates potential risks to public trust, personal privacy and civil liberty.” No kidding. And that unease exists despite a lack of evidence that the information has been abused for Nixonian political purposes.
But the task force doesn’t recommend that the Section 215 program be scrapped, only that the phone metadata be maintained not in government computers but by “private providers or by a private third party.” This idea, which has been floated during congressional hearings, would mean that the government wouldn’t possess the data on an ongoing basis, but it could access it when it wanted to “query” the aggregation of phone records, such as by putting the name of a phone number found on a terrorist’s laptop into a search box.
Some critics will consider this an improvement. For example, Rep. Adam Schiff (D-Burbank) said that having phone companies rather than the government retain metadata would be “more protective of Americans’ privacy interests.”
But would it?
The task force seems to assume that telecommunications companies would keep metadata for long periods whether they wanted to or not. If the government is still able to access information about my phone calls without probable cause that I am engaged in terrorism, does it really matter that the records are held on a Verizon computer rather than an NSA computer?
Under the task force proposal, the Foreign Intelligence Surveillance Court could issue an order allowing the government to query phone data if the government “has reasonable grounds to believe that the information sought is relevant to an authorized investigation intended to protect ‘against international terrorism or clandestine intelligence activities.’ ”
But what is an “authorized investigation”? The language suggests a narrow inquiry, but authorized investigation could also be interpreted to refer to the ongoing pursuit of all possible terrorists. Indeed, the language has been given that expansive meaning in the past.
The task force does throw in a suggestion that a court order authorizing disclosure of private information should be “reasonable in focus, scope and depth.” But that will be faint comfort to those who believe that investigators who obtain information about their phone calls must have probable cause to believe that they are engaged in terrorism or espionage.
The intelligence community obviously believes that is too exacting a standard for the acquisition of information over which (according to them, but not the judge in this week’s ruling) Americans don’t have a reasonable expectation of privacy. Which means that even if the task force’s recommendations are adopted, the courts probably will still have to decide if the 4th Amendment protects the privacy of data held by third parties such as phone companie.