A surveillance program that allows the U.S. government to comb through hundreds of millions of Americans’ telephone records in search of connections to terrorism could soon be a thing of the past. That would be good news for personal privacy and responsible intelligence-gathering.
Reports in the New York Times and the Wall Street Journal suggest that the National Security Agency has lost its enthusiasm for a program that is the successor to the massive “bulk collection” of telephone records revealed six years ago by Edward Snowden. Luke Murry, a national security advisor to House Minority Leader Kevin McCarthy (R-Bakersfield), said in March that the program hadn’t been used for the previous six months.
The White House may still recommend that Congress extend the phone-records program, which is set to expire in December along with some other provisions of the Patriot Act first enacted after 9/11. But in light of problems with the program, Congress should say no.
The original phone record program, justified under a strained interpretation of the Patriot Act, authorized the collection by the NSA of vast quantities of so-called metadata — information about the source, recipient and time of telephone calls or text messages. Investigators could then search through this electronic haystack for the needle of information that might expose terrorist plots.
The government shouldn’t have access to private information that it doesn’t need to protect the nation.
The program didn’t capture the content of conversations. Still, it placed in the government’s possession massive quantities of information that could reveal myriad details about Americans’ lives, such as calls made to a suicide hotline or to a psychiatrist, lover or potential employer.
After Snowden revealed the existence of the program, President Obama initially defended it, assuring the American people that there was no problem because“nobody is listening to your telephone calls.” But later Obama recommended that Congress end bulk collection of metadata.
In 2015 Congress passed the USA Freedom Act, which ended the bulk-collection program but permitted investigators, with permission from the Foreign Intelligence Surveillance Court, to search “call detail records” maintained by telecommunications companies. A “search term” (such as a phone number) can be used to search the records only if there is a “reasonable articulable suspicion” that it was “associated with international terrorism.”
The USA Freedom Act was only a partial victory for privacy rights, however. It did ensure that the government itself wouldn’t gather and possess phone records. But privacy is also at risk when such records are retained by a company but are still subject to searches by the government. In 2017, according to a report by the director of national intelligence, the government obtained 534 million phone records from telephone companies.
Moreover, the NSA had found it hard to implement the new program without inadvertently collecting information that is supposed to be off-limits. Last year the agency disclosed that it had deleted hundreds of millions of records collected since 2015 because telecommunications firms had turned over data that the government wasn’t allowed to access or search.
Such compliance problems might be tolerable if the phone records program were yielding information that led to the detection of terrorist plots. But that is doubtful given the government’s apparent conclusion that the program isn’t vital and that it can rely on other forms of intelligence-gathering, including the collection of information from foreigners located abroad.
There is a good reason why the USA Freedom Act and some other provisions of the Patriot Act weren’t made permanent. Congress recognized that provisions designed as emergency responses to a terrorist threat shouldn’t be reflexively reauthorized. The government shouldn’t have access to private information that it doesn’t need to protect the nation.
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