NSA surveillance ruled unconstitutional

What happened

The National Security Agency suffered a major blow this week after a federal judge ruled that its mass collection of domestic phone data “almost certainly” violates the Constitution, setting up an eventual review of the controversial program by the Supreme Court. U.S. District Judge Richard Leon, who was appointed by President George W. Bush, slammed the NSA’s program as “almost Orwellian,” and declared its record-keeping on virtually every phone call made in the U.S. a violation of the Fourth Amendment’s prohibition on unreasonable searches. Leon also said the government had no evidence that “metadata collection actually stopped an imminent attack.” The NSA’s program will continue, however, until an expected government appeal is heard.

But in response to the ruling, the White House rushed the release of a report by an independent task force charged with assessing and reforming the NSA’s surveillance activities. Those activities have faced fierce criticism in the U.S. and abroad, following a series of revelations by former agency contractor Edward Snowden about their vast scope. In its report, the task force recommended reining in the surveillance in several ways, including curbing wiretaps on foreign leaders and requiring the telecom companies—not the NSA—to hold on to metadata such as logs of phone calls. The agency would then request specific records on a case-by-case basis. Obama will review the report and is expected to announce an overhaul of the agency in January.

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What the editorials said

Leon has overstepped his authority, said The Wall Street Journal. He should have abided by a 1979 Supreme Court decision, which declared that individuals have “no reasonable expectation of privacy” over information they hand to telephone companies. The same should hold true for anyone who uses the Internet or “otherwise benefits from modern technology.” Besides, the NSA’s data collection is hardly intrusive, since its database of phone calls does not include callers’ names or addresses.

But as Leon rightly pointed out, the surveillance that led to the 1979 decision “in no way resembles” the NSA’s all-encompassing spying on every American, said the Los Angeles Times. In that previous case, data collection was tightly targeted at specific criminal suspects, while the NSA now indiscriminately makes records of millions of calls every day. As Leon also pointed out, today’s cellphones even generate records of their users’ exact location throughout the day.

What the columnists said

This ruling should be a wake-up call to America, said Jay Bookman in AJC.com. The NSA has become drunk on the power of modern technology, and is intent on “knowing all and storing all and seeing all.” We now have two options: Either put strict restrictions on the NSA’s surveillance of citizens or “write off the Fourth Amendment as technologically obsolete.”

You’re being hysterical, said Robert Turner in The Wall Street Journal. “There is a tremendous difference between collecting metadata and actually searching it.” During the whole of 2012, the NSA searched just 300 telephone numbers in its database. Only people who were suspected of communicating with foreign terrorists were targeted. The capability to track such contacts is a key weapon in the fight against al Qaida, said former Secretary of Homeland Security Michael Chertoff in USA Today. In the lead-up to 9/11, investigators lost track of one hijacker because they couldn’t follow the phone trail between a safe house in Yemen and the U.S.—a link the NSA would be able to make today. The U.S. must not “revive the pre-9/11 hamstrings that proved so costly over a decade ago.”

Thanks to Snowden, America is now having a critically important debate, said Noah Feldman in Bloomberg.com. Until his leaks, the government shrouded its mass surveillance program in secrecy—not primarily to fool terrorists, who “certainly know that we’re listening,” but “to protect itself from us” and the outrage we’re now seeing. American citizens, not faceless spies and bureaucrats at the NSA, should determine the proper balance between privacy and security. “That, in the end, is what makes us a democracy.”