When a presidential task force offered 46 recommendations for changes in the way the federal government conducts electronic surveillance, most attention focused on its proposal that the National Security Agency no longer collect and store vast quantities of records about the source, destination and duration of domestic telephone calls. That was understandable. Of all of the programs revealed by former agency contractor Edward Snowden, only the so-called telephony metadata program touches most Americans. (Last week a federal judge in New York ruled that the program was constitutional. A judge in Washington, D.C., came to the opposite conclusion.)
But the privacy of a significant number of Americans also can be compromised by other surveillance programs intended to gather information about terrorism. In its report issued last month, the Presidential Review Group on Intelligence and Communication Technologies recommended reining in those activities as well.
One recommendation concerns what are known as national security letters — demands by the government for telephone, financial and other records that typically prohibit the companies that receive them from revealing publicly that they have complied. Unlike requests for telephone metadata authorized by the Foreign Intelligence Surveillance Court, national security letters are issued without a court order. In 2012, the FBI issued 21,000 letters.
The panel recommends that national security letters be issued only with judicial approval. The panel also wants to make it easier for recipients of such letters to tell subscribers that they turned over information. Gag orders on recipients would last only 180 days unless renewed by a judge.
The panel also recommends reforms in the way the government handles information about U.S. citizens and permanent residents “incidentally” collected as part of the surveillance of the contents of electronic communications of foreigners living abroad. Such information might take the form of posts by a U.S. citizen on the Facebook page of a relative in another country.
Under current law, such information is supposed to be “minimized” — deleted or redacted. But if intelligence analysts discover evidence that a U.S. person has committed a crime, it can pass that information to law enforcement agencies.
The task force recommends that information about Americans be “purged upon detection” unless it has foreign intelligence value or is necessary to prevent harm to others. Information about a U.S. citizen or permanent resident couldn’t be used in a legal proceeding against him.
That recommendation might seem extreme — if surveillance of foreigners turns up evidence of wrongdoing by Americans, some would argue, why shouldn’t the offenders be prosecuted?
The answer is that in monitoring foreigners’ communications, the NSA inevitably will come upon detailed information about Americans that domestic law enforcement agencies would be prevented from obtaining by the Constitution. Allowing such information to find its way back to a criminal court would be an end run around the probable cause requirements of the 4th Amendment.
In its report, the task force makes the overarching observation that the government “must protect, at once, two different forms of security: national security and personal privacy.” Its recommendations for national security letters and the use of information about Americans acquired “incidentally” would help redress a lamentable imbalance between the two objectives.