Five months after Americans learned that information about their telephone calls was being indiscriminately scooped up by the National Security Agency, Congress seems poised to place limits on the bulk collection of telephone "metadata" — information about the source, destination and duration of telephone calls but not their contents. That's a positive development.
But there is a world of difference between the legislation approved by the Senate Intelligence Committee, which would make only minor improvements in the program, and a superior proposal by Sen. Patrick Leahy (D-Vt.) and Rep. F. James Sensenbrenner Jr. (R-Wis.) that would bring the collection of phone records into compliance with the letter and the spirit of the 4th Amendment's ban on unreasonable searches and seizures.
Sen. Dianne Feinstein (D-Calif.), the head of the Intelligence Committee, rightly says that the committee's bill "increases privacy protections and public transparency" in the phone records program. But the protections are minimal, and in return for the minor changes, Congress would give its explicit approval for the wholesale acquisition of metadata by the government. By contrast, the Leahy-Sensenbrenner bill would allow the government to acquire phone data only as part of an investigation tied to a specific suspected terrorist or foreign agent or an individual in contact with him. Bulk collection would end.
Obama administration officials insist that the metadata program is vital because it assembles a "haystack" that makes it possible for a computer search to extract the "needle" of evidence leading to the perpetrators of a terrorist plot. The government persuaded the secret Foreign Intelligence Surveillance Court that such a dragnet was legal under a section of the Patriot Act authorizing the acquisition of records reasonably believed to be "relevant to an authorized investigation" of espionage or terrorism. (The FISA court also noted that the Supreme Court has afforded no privacy protection to information, such as phone records, that individuals turn over to "third parties" such as phone companies — an interpretation of the 4th Amendment that has been rendered obsolete by advances in electronic information-gathering.)
It's easy, amid the legal and technical complexities, to lose sight of the question at the heart of this debate: whether the government should be able, without a showing of probable cause of a connection to terrorism, to obtain and store information that can often provide as wide a window on the private lives of Americans as the actual contents of phone calls.
Feinstein and other defenders of the program emphasize that the database is searched or "queried" only when there is "reasonable, articulable" suspicion of a connection to terrorism. The Intelligence Committee bill would further discourage abuse by mandating an annual public accounting of the number of queries and limiting the number of people at the NSA who may authorize them.
But the mere possession of such information by the government is unsettling, and there is no guarantee that some employees with access to private information won't betray their trust. On the other side of the ledger, claims that the metadata program led to the disruption of a significant number of terrorist attacks seem to have been greatly exaggerated.