A major piece of business that Congress failed to complete last year was to strengthen the privacy rights of Americans by curtailing government spying on them. It should be at the top of the agenda this year.
A key argument for the wide latitude allowed the government under current law to seize private records without a court order is that such power is necessary to protect against terrorist activities.
But The Associated Press recently reported that top officials at the National Security Agency had reached a conclusion two years ago that a program to seize all American telephone records and hold them for use in anti-terror investigations was very costly, failed to obtain cell phone records, offered no important counter-terror advantages, risked a backlash if discovered, and should be discontinued.
A 2014 presidential commission looking into NSA’s collection of communications reached a similar conclusion about the program’s marginal utility.
Yet the telephone “metadata” collection program continues.
Apparently, when rogue intelligence analyst Edward Snowden exposed the metadata program in June 2013, executive branch and top congressional officials felt they had to defend it as constitutional and a necessary exercise of federal power.
In its place, President Obama is seeking legislation to require telephone companies to keep records of all telephone calls for five years so they can be queried as needed by intelligence analysts. The House passed that bill but the Senate failed to act.
Now there is good reason to question whether the government should even go as far as Mr. Obama wants.
When Mr. Snowden made his revelations, President Obama hastened to assure us, “When it comes to telephone calls, nobody is listening to your telephone calls.”
But NSA acknowledged, in documents released late last year, that those assurances were not wholly true. The documents, obtained by Bloomberg News under the Freedom of Information Act, revealed a few intentional abuses, and a larger number of cases involved mistaken or inadvertent invasions of privacy. Bloomberg reported that the heavily redacted reports indicate that information on Americans was sent to unauthorized recipients, stored on unsecured computers and retained longer than authorized.
On at least a few occasions, employees of the spy agency took advantage of their access to Americans’ phone records to check up on suspected errant spouses.
Even the NSA reform bill that died in the Senate in November would permit the agency to probe deeply into an individual’s telephone usage without justifying its searches to a federal judge and obtaining a search warrant.
Legally the NSA’s searches — and similar search activities by the FBI and other law enforcement agencies — are allowed because the Supreme Court has ruled that individual “business records” kept by banks, telephone companies and other service providers are not protected by the Fourth Amendment requirement for a valid search warrant issued by a judge.
As it looks to privacy reform, Congress should start with repealing the “business records” loophole that allows law enforcement and intelligence agencies access to everyone’s private transactions without court supervision.