This post was updated on Dec. 17 at 2:29 p.m.
The National Security Agency began the week with a public relations coup: a favorable segment on the spy agency by the CBS News program 60 Minutes. The segment was authored by CBS correspondent John Miller, an intelligence community veteran and former public affairs officer for the Federal Bureau of Investigation, who failed to disclose to viewers that he was eyeing a return to his career in law enforcement when the episode aired, a fact that was first reported by the New York Post.
In the segment, Miller described the controversy over the NSA’s collection of telephone metadata as partly the result of confusion. “So you understand then, there might be a little confusion among Americans who read in the newspaper that the N.S.A. has vacuumed up, the records of the telephone calls of every man, woman and child in the United States for a period of years—that sounds like spying on Americans,” Miller said, in one of his questions to NSA Director Keith Alexander.
Miller’s apparent suggestion here, endorsed by Alexander, was that the collection of metadata phone records does not amount to domestic spying, because the records do not include the content of calls and the records are searched only when there is a suspected terrorist target. “Metadata has become one of the most important tools in the NSA’s arsenal,” said Miller.
This is precisely the message the NSA has been trying to get out, ever since its contractor, Edward Snowden, stole and released documents disclosing the once classified program. And there is a clear urgency to the NSA mission. The public relations war matters because Congress is now considering reform bills that could put an end to the program. Sometime next year, public polling about how American’s feel about their information being collected will play a role in determining the outcome of the debate.
But the NSA’s moment of glory was short-lived. Hours after the show aired, Federal District Judge Richard Leon, an appointee of George W. Bush, ruled that the very same program was likely unconstitutional under the Fourth Amendment, a fact that lead newscasts and newspapers on Tuesday.
Leon’s ruling is by no means the last word on the program. It will be appealed, probably up to the Supreme Court. But it was remarkable for its plain language, and clear statements of concern, which closely echo the public statements of Snowden and civil liberties advocates. In short, it is the rare legal ruling that naturally lends itself to public consumption.
For Leon, the issue comes down to this question: Do individual Americans “have a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephony metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains all that metadata for five years, and then queries, analyzes, and investigates that data without prior judicial approval of the investigative targets”?
Leon concludes that there is likely such an expectation, which would make the program illegal.
I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on ‘that degree of privacy’ that he Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware ‘the abridgment of freedom of the people by gradual and silent encroachments by those in power’ would be aghast.
In reaching his conclusion, Leon concludes that the government has for years misapplied a 1979 case, Smith v. Maryland, which found that the police could collect the phone numbers called by a suspect’s criminal phone without a warrant. The NSA has argued that because of this case, it is legal to collect records of all phone calls.
But Leon says that the scale of the collection, and the nature of phones in the modern age means the precedent does not directly apply. “The almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979,” Leon writes, before adding that the way people use phones has also changed so much that new rules need to be applied. “Count the phones at the bus stop, in a restaurant, or around the table at a work meeting or any given occasion. Thirty-four years ago, none of these phones would have been there. Thirty-four years ago, city streets were lined with pay phones. Thirty-four years ago, when people wanted to send ‘text messages,’ they wrote letter and attached postage stamps.”
Finally, Leon concludes that there is no evidence that the domestic metadata program is as effective or central to the NSA mission as the government claims. “[T]he Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensative in nature,” Lean writes.
The NSA has so far declined to comment on Leon’s ruling.
UPDATE: Shortly after this post was published, Senate Intelligence Committee Chairwoman Dianne Feinstein, who supports the domestic metadata program, released a statement in response to Leon’s ruling. She notes that a district court in California recently found the program to be constitutional. She continues,
Judge Leon’s opinion also differs from those of at least 15 separate federal district court judges who sit, or have sat, on the FISA Court and have reauthorized the program every 90 days—a total 35 times in all. Clearly we have competing decisions from those of at least three different courts (the FISA Court, the D.C. District Court and the Southern District of California). I have found the analysis by the FISA Court, the Southern District of California and the position of the Department of Justice, based on the Supreme Court decision in Smith, to be compelling.
Only the Supreme Court can resolve the question on the constitutionality of the NSA’s program. I welcome a Supreme Court review since it has been more than 30 years since the court’s original decision of constitutionality, and I believe it is crucial to settling the issue once and for all. In the meantime, the call records program remains in effect.
Those of us who support the call records program do so with a sincere belief that it, along with other programs, is constitutional and helps keep the country safe from attack. I believe the program can benefit from additional transparency and privacy protections—including additional public reporting and added court review provisions which were recently adopted by the Senate Intelligence Committee in the bipartisan FISA Improvements Act.