Last fall, Congress was on the verge of doing away with the most troubling invasion of privacy revealed by Edward Snowden: the National Security Agency’s indiscriminate collection of the telephone records of millions of Americans. But then opponents cited the emergence of Islamic State as a reason for preserving the status quo. The Senate failed to muster the 60 votes needed to proceed with the so-called USA Freedom Act.
But the legislation has staged a comeback. Last week the House Judiciary Committee approved a bill of the same name that would end bulk collection — leaving phone records in the possession of telecommunications providers. The government could search telephone records only by convincing a court that there was “reasonable, articulable suspicion” that a specific search term — such as a telephone number — was associated with international terrorism. And rules would be tightened so that investigators couldn’t search records from, say, an entire state, city or ZIP Code.
Americans were understandably alarmed in 2013 when Snowden revealed that information about the sources, destination and duration of their phone calls was being vacuumed up by the NSA and stored by the government, which could then “query” the database without court approval for numbers connected to suspected terrorists. After initially defending the program, President Obama modified it a bit, but he left it to Congress to make the fundamental change of ending bulk collection.
We had hoped that Congress would take a fresh look at whether this program is necessary at all, given a presidential task force’s conclusion that it was “not essential to preventing attacks.” But if Congress is determined to continue the program, it must establish safeguards. The bill does this, though there is room for improvement. For example, unlike last year’s Senate bill, this measure doesn’t require the government to destroy information it obtains about individuals who aren’t the target of an investigation or suspected agents of a foreign government or terrorist organization.
Approval is likely in the House, but prospects in the Senate are more doubtful. Senate Majority Leader Mitch McConnell (R-Ky.) has said that ending bulk collection of phone records would amount to “tying our hands behind our backs.”
That was, and is, a specious objection. Under this legislation, the government can continue to search telephone records when there is a reasonable suspicion of a connection to terrorism. But it will no longer be able to warehouse those records, and it will have to satisfy a court that it isn’t on a fishing expedition. Those are eminently reasonable restrictions — unless you believe that the war against Islamic State and similar groups means that Americans must sacrifice their right to privacy in perpetuity.