Can Privacy Be Saved?

Liberty and Security in a Changing World: Report and Recommendations of the President’s Review Group on Intelligence and Communications Technologies

December 12, 2013, 303 pp., available at www.whitehouse.gov

Remarks by the President on Review of Signals Intelligence

January 17, 2014, available at www.whitehouse.gov

Report on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court

by the Privacy and Civil Liberties Oversight Board
January 23, 2014, 234 pp., available at www.pclob.gov

1.

When the secretive Foreign Intelligence Surveillance Court (FISC) first authorized the National Security Agency in May 2006 to collect and search the telephone metadata records of every American—including every number we call, how often we call, when we call, and how long we talk—it did not even write an opinion justifying its decision. Judge Malcolm J. Howard, one of eleven federal judges hand-picked by the chief justice of the Supreme Court to serve on the FISC, simply issued a secret ten-page order, largely comprised of the rules and regulations under which the program was to operate. The order included no discussion whatever of whether the program was constitutional. It asserted formulaically that the government had satisfied the requirements of Section 215 of the USA Patriot Act, but included no explanation of how the program did so.

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Pete Souza/White House
President Obama on the phone with Mitt Romney, election night, November 6, 2012

This is surprising, because on its face, Section 215 would not seem to support the program. It authorizes the FBI, not the NSA, to obtain business records, and only if it can identify specific facts showing that the records are “relevant” to an authorized counterterrorism investigation. Yet the FISC order authorized the NSA, not the FBI, to collect not specific records relevant to a particular terrorism investigation, but all records of all Americans’ every phone call, without showing that any of them were connected to terrorism. Every ninety days thereafter, the FISC routinely—and secretly—reauthorized the program, again without any attempt to explain why it deemed the program lawful.

In fact, the FISC did not issue an opinion explaining its rationale until August 29, 2013, more than seven years after the program had been up and running—and two months after Edward Snowden had disclosed the program to the public. That the FISC would authorize such an unprecedented and sweeping surveillance program, affecting virtually every American, without even bothering to explain its rationale for doing so is emblematic of the problem with secret law in the post–September 11 era. As a rule, the FISC operates in secret, hears only from government attorneys, nearly always grants their requests, and does not publish its orders. The NSA similarly operates almost entirely in the dark. Formally established by a classified executive order in 1952, its existence and operations were so clandestine that the intelligence community wryly referred to it as “No Such Agency.” If your operations are secret, why would you feel any obligation to explain your rationale?

All that changed in June 2013, when Snowden brought the public into the conversation. The first of many NSA programs that Snowden revealed was its telephone metadata program. Within the United States, that program has generated the most attention (although the NSA’s even more expansive foreign surveillance has created a firestorm of controversy outside the US). Once American citizens learned that the NSA was…


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