A federal judge’s tartly worded finding against the National Security Agency’s collection of phone records, if upheld, would expand privacy rights to an extreme degree and undermine the war on terrorism.
Granted, an individual’s right to be free from government meddling in their private matters is essential, and U.S. District Judge Richard Leon’s concern is justified — if overblown.
In his finding, which is stayed pending appeal, Leon wrote:
“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high tech-tech collection and retention of personal data on virtually every single citizen for the purposes querying and analyzing without prior judicial approval.”
It sounds nefarious, but in fact the government’s collection of phone records was authorized in the Patriot Act.
It allows the government to collect and store phone “metadata” that includes the time, duration and origination and destination of calls. The information acquired does not contain the content of any communications.
But the aggregating of metadata into a database enables American security officials to quickly look for contacts among terrorist suspects.
Any search of the database must be approved by the Foreign Intelligence Surveillance Court, a special court that reviews warrant applications related to national security.
In 2012, the NSA made fewer than 300 queries, and those queries had to be based on specific suspicious facts.
So there is hardly a pell-mell rummaging of personal information. Moreover, as the Supreme Court found in the 1979 Smith v. Maryland case, there is no presumption of privacy for information people willingly expose to a third party, such as a phone company.
The phone records — not conversations — are what this is about.
It is notable that, as The New York Times reports, last month a federal judge refused to grant a new trial to several San Diego men who had been convicted of sending money to a terrorist group in Somalia. Government officials said the call records program played a part in the investigation. The judge in that case found the men had no right to privacy on the phone data.
Leon, in contrast, found that advances in phone technology make the 1979 case irrelevant, but records are still records, regardless of how much more sophisticated today’s phones are or how much more data can be stored.
It’s no surprise the finding was viewed as a vindication by former NSA worker Edward Snowden, who revealed the elaborate surveillance efforts, an act of sweeping betrayal that has undermined the nation’s antiterrorist efforts.
Leon’s ruling resolves nothing. All of this will be further addressed by higher courts, a special NSA review committee appointed by the president and Congress.
We hope judges and officials alike see that Leon’s ruling is, as former National Security Agency general counsel told the Wall Street Journal: “a remarkably tone-deaf approach” to a program that was started because we failed to identify the 9/11 hijackers.