The White House’s response to the explosive revelations about the National Security Agency’s monitoring of Americans’ phone records and e-mails has essentially boiled down to this: Trust us, we’re doing this for your own good, and we’re going about it the right way. But the public is not buying it. The president’s approval rating has dropped 8 points, and only 37 percent support the secret spying program, which, as currently implemented, may well violate the Fourth Amendment’s prohibitions against unreasonable searches and seizures. The administration needs to curb the excesses of its surveillance programs, so that whatever national security benefits they provide no longer come at such great threat to personal freedoms. These are the moves to make:
Show us the Memos
The Foreign Intelligence Surveillance Court, or the FISC, was set up by Congress in 1978 to supervise domestic eavesdropping. Before 9/11, intelligence agencies could seize from American citizens only certain types of information, like business records, and only when it was shown to be associated with a specific espionage or terrorism investigation. But the Patriot Act (in its notorious Section 215) changed that, authorizing the government to seize “any tangible thing”—that is, any data whatsoever—so long as it’s arguably relevant to counterterrorism efforts. What the Patriot Act’s congressional backers didn’t anticipate was that technological advances would make digital storage cheap enough to amass vast troves of information—and that an administration would interpret Section 215 as permitting ongoing, daily collection of so-called meta-data, as Obama’s has.
The White House has said the perpetual dragnet is permitted by the law but has not released the secret memos justifying its conclusion. Meanwhile, Director of National Intelligence James Clapper claims that the FISC limits the government’s access to the information the NSA has been collecting. That court order is secret, too. The country needs an open debate about the constitutionality of the program, and that can’t happen unless the White House releases all of the relevant documents.
Fix the “Third-Party Doctrine”
The Supreme Court has held that, when an American surrenders data (like a phone number or financial records) to a third party for one purpose (say, to get a working phone line or a bank account), he or she abandons all expectations that the data will remain private for any purpose. But the 1979 ruling that established that standard was handed down in an analog world. Today, the so-called “third-party doctrine,” taken to its extreme, could allow the government to access every bit of data a person stores in a cloud computer database—from e-mail to photos to word-processing documents to geo-location readings—without limitations. A bipartisan bill sponsored by Patrick Leahy and Mike Lee, and another put together by Ron Wyden and Jason Chaffetz, would fix that problem by requiring search warrants before digital data can be seized. So far, however, the Obama White House has refused to back these measures. It should give them its full support.
Pass the SAFE Act
There’s another way to ensure that Americans’ personal info is protected from illegitimate prying, and it’s through a bill that Obama himself co-sponsored as a senator. As things stand, the government submits for judicial review only the macro procedures it says it’s using to minimize the information the NSA is targeting, rather than individual surveillance applications. What’s more, under the legislation authorizing George W. Bush’s warrantless wiretapping program, the NSA can access any communications between an American and an overseas “target” that seems to involve “foreign intelligence information”—a broad and amorphous term.
The Security and Freedom Ensured Act, or SAFE Act, originally proposed in 2005, would have amended Section 215 to require that the government provide to the FISC “specific and articulable facts” creating reasonable suspicion that a particular person is an “agent of a foreign power” before his or her phone records could be seized or monitored. An updated version of the legislation would establish an important burden of proof that’s nowhere to be seen now.
Ease up on the Whistle-blowers
Edward Snowden told The Guardian that he was inspired by Bradley Manning, whom he called “a classic whistleblower,” motivated by the public good. He was also following the examples of Thomas Drake and John Kiriakou, who faced federal prosecution after spilling secrets from the NSA and CIA. Ceasing the leak crackdown would not end the excesses of the new surveillance state. But it would send a valuable message, conveying that President Obama and his White House are interested in preserving civil liberties, not covering up their own abuses.
Jeffrey Rosen is the legal affairs editor of The New Republic.
Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.