President Barack Obama announced changes to the practices of the National Security Agency on Friday, placating critics on the right and the left concerned about the pervasive electronic spying revealed by whistle-blower Edward Snowden. What Obama did not do is erase the capability of large institutions to maintain records of our communications.
One of the primary concerns of those who believe the NSA has gone too far is the agency’s program for collecting massive quantities of so-called metadata — phone records of up to 200 million Americans every day. Obama proposed that the government should no longer hold that data. Instead, it should be held by a third party or by the phone company, and if an intelligence agency needed access to it, it could get a warrant.
That change preserves an important principle. The Constitution demands that the government have a reason for snooping through our private records. Phone companies already have those records — we see a record of our calls when we receive our phone bills. It may make us uneasy that our communications have left those footprints in the sand, but it is nothing new. And it would be nothing new, if the government had a well-founded suspicion that we were guilty of a crime, for the government to seek a warrant to look at those records.
Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, praised Obama for his proposed actions. “I am encouraged that the president has embraced the growing consensus that the Section 215 phone-records program should not continue in its current form. The bulk collection of Americans’ phone records has not made us safer,” Leahy said after Obama’s speech Friday.
Section 215 refers to the section of the USA Patriot Act that had provided the basis for the government’s collection of phone records.
Obama fell short with regard to national security letters, which investigators send to companies — or to your neighborhood library — demanding information. At present, no court order is required, and those receiving a letter can be ordered never to reveal they have received one. Thus, if the FBI orders the library to disclose what books you have checked out, the library may not tell you it has received the request.
Obama proposed that the gag order on those receiving letters be limited. He did not recommend a change requiring court approval for the issuance of a letter.
Obama also said the United States would no longer spy on friendly foreign leaders — as it had been doing on German Chancellor Angela Merkel, among others. It raises the question: Who is a friendly leader? The president of Afghanistan is one of our important clients, but often he is not so friendly. The prime minister of Israel is one of our major allies, but he is often quite unfriendly. As it stands, everyone is on notice about U.S. capabilities. How we instill trust in nonfriendly, or moderately friendly, nations is another question.
In typical Obama fashion, he tried to reason his way through competing claims toward a compromise that would achieve balance. On one side is a real concern about our national security and the need to keep track of terrorist threats. On the other is concern about the privacy rights of Americans at a time of Orwellian overreach by government and tech companies. Protecting the rights of individual citizens will be a constant struggle in the electronic era.
Leahy got some of what he wanted in Obama’s reforms, but he said he would be pushing for more. Greater transparency and accountability are worthy goals.
“Simply because we can do something does not always mean that it makes sense to do it,” he said. “We need to clear-headedly evaluate what we gain from unleashing these technologies, as well as what we risk losing. We must always recognize that, in a democracy, government’s role is to serve the people, not the other way around.”
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