A federal judge ruled Monday that the National Security Agency needs to stop collecting and storing the time, date and phone number for every call every American makes or receives, going back five years.
We’re not sure we agree with Judge Richard Leon, but we like the questions his ruling raises and the time it gives us to contemplate changes in our anti-terror data collection efforts.
The judge’s argument is that this amounts to an illegal search of our phone records without a warrant, in violation of the 4th Amendment to the U.S. Constitution.
The NSA, the Obama administration, and the chairs of the intelligence committees in both houses of Congress have argued the other side. They have said this is nothing more than a modern version of what the Supreme Court approved in 1979 (in a criminal case called Smith v. Maryland), which is that the records of our phone calls – but not the content – are a normal business record about which we should not expect privacy.
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In the 1979 case, the government went to the phone company to get to the records. In the 21st century, the government needs the information in an instantly searchable database so it can track fast-moving terrorist networks, either historically or in real time.
In general, we lean toward giving the government the authority to have and use this data. But this latest ruling, which the judge immediately suspended so that all these issues may be appealed ultimately to the Supreme Court, does give Americans a chance to rethink some things.
For instance, among questions raised by a presidential advisory group on Wednesday:
• Should the phone companies, rather than the government, hold the metadata but make it readily available to the government upon the presentation of a specific search warrant?
• Should there be a “public-interest advocate” added to the secret court that authorizes the collection and searches of this metadata? This advocate would represent the privacy and civil liberties interests of Americans. Now only a judge and a lawyer representing the intelligence community are present in those hearings.
While Americans are thinking about these issues, and deciding what is appropriate for a nation that wants to remain safe and respect its Constitution, Judge Leon challenged the government to answer the most basic question: whether the government could cite “a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time sensitive.” If it could cite such an instance, he wasn’t aware of it.
This ruling, and the judicial stay during appeal, give the Obama administration and the intelligence community time to answer that very important question.
Whether this program survives may depend on their answer.