A federal appeals court ruling this week that the U.S. government's routine collection of Americans' telephone records is illegal should build support for modest reforms the House is expected to vote on next week. The National Security Agency should not be collecting mountains of data on Americans who have done nothing wrong, and there are more productive ways to fight terrorism. The House should approve a bipartisan compromise supported by the Obama administration that is a small step toward better balancing national defense and constitutional protections, and Senate Majority Leader Mitch McConnell should drop his objection to any changes.
A federal appeals court in New York ruled Thursday that a section of the Patriot Act does not allow the bulk collection of calling records within the United States. That systematic data collection has been routinely approved, outside public view, by the Foreign Intelligence Surveillance Court. But this marked the first time a higher-level court in the traditional federal court system has found the telephone meta data collection is not authorized by federal law. The 97-page opinion by the three-judge panel of the 2nd U.S. District Court of Appeals underscores why this massive collection of information has for years needed more public scrutiny.
The NSA has been collecting and storing records from American phone companies since the 9/11 terrorist attacks. The data includes the originating and receiving phone numbers, the location of the callers and the length of the calls. The secret program only became public in 2013 after it was revealed by Edward Snowden, creating public outrage and raising serious constitutional questions. The Senate quashed an opportunity to resolve some of those concerns last year when it blocked changes approved by the House, but now there is another chance to act responsibly and take some small steps toward protecting civil liberties.
The U.S.A. Freedom Act that the House appears poised to approve next week would require that the bulk records remain in possession of the telephone companies rather than be routinely sent to the government. The NSA still could obtain the information to look for links to terrorists, but only after getting permission from the secret FISA court. The legislation also would create a new panel on privacy and civil liberties that would advise the court, and important FISA court opinions would be made public. That is at least a start on putting some controls on this massive data collection, and there is pressure on Congress to act because the Patriot Act expires June 1.
The legislation is a bipartisan compromise, and it doesn't go nearly as far as it should. Information about Americans could still be snagged if it comes from outside the country. Inside the country, federal agents could keep under surveillance any foreign visitors they suspect could be terrorists for 72 hours without getting a warrant. And the hearings before the secret FISA court still would be one-sided, because there is no one there to advocate for civil liberties and privacy rights as the government makes its case for data collection and surveillance.
While the Freedom Act should pass the House, McConnell and a handful of Republicans such as Sen. Marco Rubio remain obstructionists. Rubio continues to spread fear about domestic terrorism as he defends the data collection, but even NSA officials acknowledge that the meta data has not been particularly useful and endorse the modest changes. The appeals court ruling should put additional pressure on the Senate to act responsibly and approve a better balance between fighting terrorism and protecting the civil liberties of law-abiding Americans.