Whatever one thinks of former National Security Agency contractor Edward Snowden, his revelations are leading to a welcome rethinking of how the country's intelligence community does business. A report by a presidential advisory panel released Wednesday and a ruling by a federal district judge Monday warn that American civil liberties are being compromised by the bulk collection of data on innocent people. President Barack Obama has said he is open to considering new constraints. Now he should implement the panel's key recommendations and urge Congress to do its part.
Civil liberties were shunted aside after the 9/11 attacks. The nation's spy agencies were given license to use the latest technology and data storage capabilities to find and track suspicious activities. The result — now known due to Snowden's leaks — is that with little oversight or accountability, they built a vast data dump of personal information on people who have no relationship to terrorism. Neither the president nor Congress was willing to act to protect Americans' constitutional rights.
But continuing along this path is no longer viable. This is not only because it endangers the privacy of Americans and erodes the public trust, but because the techniques have not been borne out as essential to keeping the nation safe.
The President's Review Group on Intelligence and Communications Technologies, which includes experts in national security, technology, privacy and the law, was charged with recommending ways to rebalance the scales. Its wide-ranging report offers a sensible way forward that would rein in the use of intrusive technology and bring back judicial oversight for government snooping.
For instance, the panel says that the NSA's telecommunications metadata program, which sweeps up all the communications logs of Americans and holds them for five years, should be radically reconceived. The data should be left with the phone companies or a third party, with access only by court order. This would end the dragnet-like searches that so offend the spirit of the Fourth Amendment, which protects Americans from government nosing into their private information absent evidence of wrongdoing.
The panel calls for long-overdue changes to the operation of the secret Foreign Intelligence Surveillance Court, which has rarely rejected a government request for mass-data collection. It says the hearings should be adversarial with an attorney arguing for privacy and civil liberties, and no longer should the U.S. chief justice appoint all the court's members. That duty should be shared among Supreme Court justices.
One of its most consequential recommendations is to put an end to the FBI's ability to obtain Americans' financial, travel and other records without a warrant by use of an administrative subpoena known as a national security letter. The FBI issues thousands of these letters every year as a way to avoid judicial oversight.
Protecting America from terrorism is a vital national security interest, but the panel, as well as a federal judge on Monday who said the NSA's metadata program was probably unconstitutional, found that the data collection was not needed to prevent attacks.
The president can implement many of these recommendations unilaterally. He should do so. But it is also vital that Congress commit them to law to constrain future administrations. Civil liberties need to retake their rightful place as a pre-eminent feature of American life.