Edward Snowden wanted to spark a debate about the role of the National Security Agency. The man who set in motion revelations about the reach of the mass surveillance programs has succeeded on that count. The discussion heightened on Monday when federal Judge Richard Leon issued a scathing assessment of the bulk collection of phone records, concluding the effort likely violates the Constitution.
Debate has been launched elsewhere, on Capitol Hill, and at the White House, where President Obama soon will receive the proposals of an advisory committee formed to examine NSA operations. For his part, Judge Leon, an appointee of George W. Bush to the district court in Washington, added a helpful dose of edge describing the surveillance as “almost Orwellian” and something that would leave James Madison “aghast.”
His ruling challenged the first purpose of the program, the contention that collecting the wide range of phone records is necessary to thwart terrorist attacks. He noted an “utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative techniques.”
Thus, the judge concluded that the “indiscriminatory” and “arbitrary” approach landed far short on the crucial test — whether the government’s interest in collecting telephone data in bulk outpaces individual privacy interests.
The secret court that oversees the surveillance program long has pointed to a 1979 precedent set by the Supreme Court. The justices ruled then that individuals do not have a reasonable expectation of privacy for information they have exposed to a third party, for instance, the phone company. The NSA stresses it is just collecting “metadata,” numbers, dates, times and the duration of calls, not the content of conversations.
What Judge Leon reminded is that the world of communications has changed dramatically, or beyond “anything that could have been conceived” three decades ago. He noted that in 2012, the high court barred police officers from using a GPS tracking device to follow the path of a suspect without first getting a warrant.
If the judge found little evidence to suggest the National Security Agency program has stopped a terrorist attack, it also seems that critics lack proof of the agency misusing the data it collects, or somehow trampling on privacy. What should worry, and what echoes in the judge’s ruling, is the real potential for abuse, the program requiring better safeguards, starting with a narrowing of its scope. That potential is yet another element open for full and animated debate, this case headed for the federal appeals court and, ultimately, to the Supreme Court.