December 31, 2013

VIEW FROM AWAY: Burden of proof on NSA

The Washington Post

The bulk collection of phone “metadata” by the National Security Agency — records of who’s calling whom, when and for how long — is a potentially powerful tool that could, if abused, reveal sensitive facts about nearly every American’s life. The practice, disclosed by former NSA contractor Edward Snowden, demands extensive checks to guard against misuse. The government has said its oversight process is already strong. To varying degrees, a federal judge and a task force appointed by President Barack Obama now have disagreed.

According to the Wall Street Journal, the task force, which was set to submit a sealed report to Obama over the weekend, would like to see a higher legal standard applied before the government can access phone records. It reportedly proposed an end to the bulk collection of records, instead calling on the NSA to approach phone companies and ask for records as investigators need them, on a case-by-case basis. Government officials have seemed open to considering this arrangement but have voiced concern that investigative speed may be lost in the interest of privacy protection.

To make such a case, they will have to do better in demonstrating the national security benefit of the program. On Monday, U.S. District Judge Richard J. Leon signaled skepticism on that score as he issued an injunction to prevent the bulk collection. He stayed his action to give the government a chance to appeal, but he expressed the view that the government was likely to lose its legal case. He ruled that the NSA, in maintaining a running five-year phone-records database, likely is in violation of the Constitution’s Fourth Amendment restrictions on unreasonable searches.

Rejecting the applicability of a 1979 ruling that offered no constitutional protections to metadata, Judge Leon argued that Americans’ relationship with technology has changed drastically now that cellphones and tablet computers are so ubiquitous and powerful. The government’s ability to collect information in bulk and hold it in perpetuity changes the context decisively from the 1979 case. Moreover, he wrote, the government provided far too little evidence to show that its collection has proved valuable; in none of the three examples the government cited was immediate access to phone records necessary. Without a more convincing account of its value, Judge Leon wrote, he could not find that pressing national interests outweighed the reasonable privacy concerns.

The NSA’s activities will continue to be litigated in court and in the court of public opinion. If the government is to emerge from Snowden’s revelations with the authorities that officials insist are crucial, it will have to do more to demonstrate why they are essential and how Americans’ privacy is being protected.

Editorial by The Washington Post

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