The case against NSA's phone record surveillance

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The American Civil Liberties Union's lawsuit against the National Security Agency, seeking an end to the collection of data about nearly every phone call made by Americans, provides an almost unprecedented opportunity for the public to challenge the legality of the surveillance being conducted in its name. Although the government maintains that the program is authorized by the Patriot Act, and a special court designed to handle such matters has agreed, it has not been subject to anything like the kind of review we typically expect of the government's actions. The government's acknowledgment of its existence directly contradicts officials' earlier statements about the nature of NSA surveillance, and the author of the Patriot Act says it goes beyond the kinds of activities he intended the law to authorize. The Patriot Act is too broad as it is, and any stretching of it — which this program clearly is — demands a public airing as to its constitutionality.

The phone record collection program, initially reported by the British newspaper The Guardian based on documents leaked by former government contractor Edward Snowden, collects so-called metadata about phone calls made domestically and internationally — the time, location, duration and numbers associated with every call. National security officials have explained that the purpose of the database is to match phone calls with the numbers of phones used by suspected terrorists in an effort to build information about their associates and networks. Officials have suggested that the database was used to foil at least a small number of terrorist plots, though there is no way to know based on the information that has been disclosed whether the constant collection and cataloging of such data was necessary to achieve those successes or whether more targeted, after-the-fact subpoenaing of records would also have worked.


Timothy Edgar, a former Bush and Obama administration official who worked on the program, told The New York Times that part of the rationale for the database was that the mere collection of records was not an invasion of privacy, just the human examination of them. For that reason, he and others said, security officials built in a variety of safeguards to ensure that records were not examined for any purpose other than an investigation related to national security.

But how much confidence can we have that any safeguards the government implemented will be followed? If past abuses of power were not enough to give us pause, surely the fact that a 29-year-old government consultant living in Hawaii was able to access and leak information about the program should.


Public polling since the revelation of this program's existence has revealed a degree of ambivalence about it. A CBS News poll found that nearly 60 percent of adults surveyed disapproved of the government collecting phone data on average Americans. About an equal number said they are worried about losing some of their privacy as a result of the government's efforts to fight terrorism. Yet less than 40 percent say they are worried about the government monitoring them. The attitude seems to be that if you have nothing to hide, why worry?

The ACLU's lawsuit makes a compelling case for why it, at least, is worried. The tracking "gives the government a comprehensive record of our associations and public movements, revealing a wealth of detail about our familial, political, religious and intimate associations," the complaint says. More to the point, the ACLU says that it communicates frequently with potential whistleblowers and clients in civil liberties litigation, and the mere existence of those communications is frequently privileged. The knowledge that such information is being collected by the government could have a chilling effect on the organization's activities, the ACLU's complaint says.

Deciding how to balance those concerns with the nation's security needs is not something the Foreign Intelligence Surveillance Court is well equipped to handle. Because it operates in secret, it does not provide the opportunity for the kind of adversarial hearings that are the backbone of our judicial system. When the court initially authorized this program, and when it has renewed its approvals subsequently, it did not have the benefit of true, independent counter-argument.

Previous efforts to bring matters like these to light in federal courts have failed, often because the plaintiffs were unable to prove that they had standing to sue. The ACLU, as a customer of Verizon Business Services, the company subject to the order Mr. Snowden leaked, has no such problem. A Supreme Court evaluation of the government's use of the Patriot Act is long overdue, and this lawsuit should give us the chance to have it.