President Barack Obama’s NSA reforms, announced Friday, do not provide adequate protection for Fourth Amendment privacy rights with respect to the bulk collection of telephone records.
Congress must step into the controversy with legislation to restore its original intent of allowing the government to access business records of Americans only when they are directly applicable to criminal and intelligence investigations.
Under the president’s new order the government can continue to require that the telephone records of all Americans be kept for an undisclosed number of years so that the National Security Agency can access them. The president acknowledged that it is unclear just how his proposed third party, arms-length custody of the personal telephone records of the nation would be accomplished.
He said a court order will be required before NSA begins a search through these records, but the court remains the secret Foreign Intelligence Surveillance Court that already has gone along with executive branch requests to seize all American telephone records — even though that power was not clearly spelled out by Congress.
The president’s announced reforms assume the legitimacy of the secret court’s once-secret ruling that the government has the power to compel telephone companies to hand over every phone record in their possession, in bulk.
That ruling has been strongly questioned by legislators who wrote the Patriot Act Section 215 language on which the court relied. Only Congress can make clear the limits of the powers it authorized when it passed Section 215. Bipartisan legislation to do this, called the USA Freedom Act, has been proposed by Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, Rep. James Sensenbrenner, R-Wis., chairman of the Crime, Terrorism, Homeland Security and Investigations subcommittee of the House, and other legislators of both parties. It amends Section 215 to achieve the needed clarity, stop the bulk collection of telephone records and rein in excessive government intrusion into the privacy of American citizens.
Sen. Leahy said of Mr. Obama’s speech: “The president has ordered some significant changes, but more are needed. Section 215 must still be amended, legislatively, to ensure it is not used for dragnet surveillance in the future.”
On the president’s promise of safeguards for phone records the government has collected, Sen. Leahy noted that all the safeguards already in place did not prevent NSA contractor Edward Snowden from walking away with enormous amounts of secret material he has used to expose the extent of the agency’s surveillance.
Congress should urgently move forward on the USA Freedom Act. The president’s other reforms concerning the surveillance of friendly foreign governments will hopefully smooth U.S. foreign relations. The president, however, rightly hedged these restraints on the NSA by saying they could be reversed if circumstances required.
But so could the president’s order concerning the bulk telephone data collection program.
As Rep. Sensenbrenner said in response to Mr. Obama’s speech:
“The bottom line is real reform cannot be done by presidential fiat.”