Since Sunday at midnight, the National Security Agency has ceased keeping track of the phone numbers you call and where you are when your conversations take place.
Do you feel less safe? No one has explained satisfactorily why you or anyone should.
The New York Times wrote Monday that the expiration of the NSA’s bulk warrantless data collection program “demonstrates a profound shift in American attitudes since the days after the Sept. 11, 2001, terrorist attacks.” This is not true, even if such a shift has taken place. That’s because no one suggested such a program after the terrorist attacks of Sept 11, 2001. If they had, the idea would have met strong resistance even then.
When the USA PATRIOT Act passed that year, no one, including its staunchest supporters, envisioned or discussed a blank-warrant system of indiscriminate government snooping on citizens. This is evident from both the congressional debate and the text of the law. The PATRIOT Act’s chief 2001 sponsor, former House Judiciary Chairman James Sensenbrenner, R-Wis., has made this clear repeatedly, and the Second Circuit Court of Appeals reinforced his point by ruling recently that no such authorization exists in the statute.
The question, then, is simple: If Congress did not see the need to authorize indiscriminate collection of private metadata in the days just after 9-11, why should it go back and do so now, when Americans’ fear of terrorism has been tempered by more than a decade of life in the post-9-11 world?
The NSA program’s supporters have failed to approach the burden of proof that would justify any weighing of this program based on trade-offs between security and liberty. When the program was first exposed, the intelligence community rushed forward with a sloppy claim that it had prevented as many as 54 attacks. Officials then proceeded to walk this claim back as it fell apart under scrutiny. In congressional testimony, officials have since admitted that many of those cases involved only terrorist “activity,” not plots; that not all 54 cases involved the bulk data collection; and that only 13 of the 54 cases involved anyone within the United States.
In only one case has the government publicly claimed that bulk metadata collection was its main or primary source of information. That case was not a terrorist plot, but rather that of a San Diego resident who sent $8,500 to the Somali terrorist group al-Shabbab.
At the time it passed, the PATRIOT Act was touted as giving law enforcement the same tools to combat terrorism as it already had to combat drug trafficking. This was a sensible aim then and is so now. No one wants to stop the government from tracking known terrorist suspects.
For example, the roving wiretaps in the PATRIOT Act (which allow police to monitor specific suspects on any device they might use, rather than just individual phone numbers) are an appropriate tool. Unlike the NSA data program, they require an actual suspect and probable cause that satisfies the judicial branch, standards that apply in all other areas of criminal law.
Sen. Rand Paul, R-Ky., who manned the barricades against reauthorizing (or authorizing) this program, has correctly suggested that domestic anti-terrorism enforcement would benefit from a new focus. The billions saved by ending indiscriminate surveillance should be used to bolster traditional law enforcement efforts. He specifically recommended hiring 1,000 additional FBI agents to track people believed to pose a terrorist threat.
In the meantime, rather than create a first-ever statutory justification for such a constitutionally dubious program of bulk spying, Congress should reauthorize only the tools in the PATRIOT Act that it originally intended to create, leaving bulk seizures of personal information to the world’s totalitarian regimes.
