It's a good bet that, in the next few weeks, President Barack Obama will impose some serious reforms — and ask Congress to enact a few more — on how the National Security Agency scoops up and stores data from the phone and Internet records of American citizens.
The case for reform received two massive boosts last week: first, from a federal judge's opinion that the NSA's massive metadata program is probably unconstitutional; then, from a presidential commission's report concluding that the program is not only dangerous but unnecessary on policy grounds.
In this one-two punch, the crucial blow will be dealt not by the dramatic (really, stunning) court ruling, but rather by the more prosaic — and, for all that, more potent — commission report.
Obama created the commission in August, soon after Edward Snowden's first leaks about NSA domestic surveillance, and many predicted it would churn out the usual blue-ribbon slush, allowing the president to slap on a few cosmetic patches that let the gigantic machine at Fort Meade continue running unhindered.
But that's not what happened here. This five-man panel produced a 300-plus-page report, containing 46 recommendations, which, if carried out, could make a genuine difference.
The report's authors make no judgment on the surveillance program's legality, though they do note its harsh dissonances with the Fourth Amendment, which guarantees the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." More to the point, they state that the NSA's most indiscriminately intrusive program — the one that the federal judge denounced as "almost Orwellian" and probably unconstitutional — isn't necessary.
This program — the one that the initial Snowden leaks uncovered — allows the NSA, conceivably, to sweep the phone calls of every American citizen — not their contents but where the calls are going and how long they last. It also allows the NSA to store this data and if necessary retrieve it, for many years.
In the course of their work, the panelists asked top NSA officials if they've ever gone back to look at data two, three, or five years after it's been gathered. The answer: no, never.
So, this wildly expansive program is almost entirely unused and almost certainly unnecessary. If that's all there was to it, we could all rest easily: The metadata sweeps have resulted in almost nothing, and the NSA doesn't really sweep as deeply as it allowed itself to sweep anyway. But just because the agency doesn't sweep so deeply today doesn't mean it won't go very deep tomorrow.
The same algorithms that enable NSA technicians to track suspected terrorists would also enable them, if so ordered, to track political opponents, street protesters, malcontents of all stripes — whomever and whatever sorts of targets a rogue NSA director, or more to the point an authoritarian president, might want to track.
To put it another way: Imagine if this technology had been around when Richard Nixon was president and J. Edgar Hoover was FBI director. Now assume that Nixon and Hoover were not the last of their kind. Our political system is not immune to the ascension of authoritarian leaders, especially if we were to come under another 9/11-type terrorist attack.
The commission report's 46 proposals consist mainly of safeguards — speed bumps, hurdles, barriers — to prevent, or at least slow down, the erosion of civil liberties, whatever the political climate. (The report's title is "Liberty and Security in a Changing World.")
Of course, the commission's recommendations amount to small stuff compared with the Dec. 16 opinion by U.S. District Court Judge Richard Leon that the NSA's metadata program is probably unconstitutional. In an impassioned 68-page memorandum, Judge Leon argued that Smith vs. Maryland, the Supreme Court decision often cited to support the program's legality, "simply does not apply" to the scope of surveillance revealed in the Snowden documents. If this opinion became law, metadata collection would simply be outlawed.
Meanwhile, the report by the President's Review Group on Intelligence and Communications Technologies — as the commission is officially called — strikes a realistic and, as these things go, far-reaching set of checks and balances. Very likely, metadata collection is here to stay. It is simply too powerful a tool for any nation to abandon (and the United States is far from the only nation to have it). This being the case, the question is how to control the beast, how to keep it from becoming a truly dangerous weapon. The commission's report does that, for now. If the president doesn't adopt its key proposals, that will be a major failing.
Fred Kaplan is the author of The Insurgents and the Edward R. Murrow press fellow at the Council on Foreign Relations.
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