A congressional aide hinted that the end of the National Security Agency’s collection of program metadata might be closer than thought — so close, in fact, that if the aide’s account is correct, no new data has been collected over the past six months. But even if the NSA has suspended this particular violation of privacy without legislation, that doesn’t absolve Congress of its responsibly to end authorization. And if the suspension is real, it proves that the program is not as vital as its defenders have claimed.
The program, supposedly authorized first by the PATRIOT Act in the wake of the terrorist attacks of Sept. 11, 2001 set off a political firestorm when Edward Snowden revealed its existence in 2013. Since then, it has become a textbook example of government intrusion into the lives of private individuals in the U.S.
In 2015, facing fallout from Snowden’s revelations, Congress passed the U.S.A. Freedom Act, curtailing the authority of the program and limited the number of records that could be collected and required a judge’s permission to retrieve phone and text data.
Still, the collection of metadata, even if not as broad as it once was, constitutes an intrusion into the private lives of citizens and authorizes significant government overreach and lacks the legal oversight that such intrusions ought to require. Just last June, for example, the NSA acknowledged that it had stored millions of records illegally and that it was now working on destroying records it did not have authority to have.
But over the weekend, Luke Murry, national security adviser to House Minority Leader Rep. Kevin McCarthy, R-Calif., told the Lawfare podcast that the data collection had ended if it was still legally allowed, explaining that the Trump administration “hasn’t actually been using it for the past six months.” And he also added, “I’m actually not certain that the administration will want to start that back up.”
That’s welcome news. If Murry’s account is accurate, then President Trump has done what his predecessor would not, and the end of the collection of data does indeed seem likely. After all, it is much harder to justify restarting an already-halted program than merely to justify the continuation of existing practices. Moreover, the pause underscores that the program has done little if anything to actually thwart terrorist attacks. That could be the last straw for congressional support.
But Congress must not complacently reauthorize the collection of this data when the Freedom Act expires later this year. Just because the program is rumored to be on hold doesn’t mean that the NSA couldn’t decide to start collecting that data again. The safeguarding of rights requires constant vigilance.
