Holding the NSA to account [Editorial]

Our view: A federal judge was right to take issue with the idea that the government can respect citizens' privacy rights at the same time it is busy violating them

December 17, 2013

A federal court ruling this week that the National Security Agency probably violated the Constitution by collecting "metadata" — records that show things like who is calling whom, from where and for how long — on millions of Americans' phone and email correspondence has for the first time put the onus on the Obama administration to show why the agency's massive electronic surveillance program is justified. In effect, the court said the government can't have it both ways — scooping up billions of citizens' private messages without their knowledge or consent while insisting it is respecting their privacy rights. That's the kind of Orwellian doublespeak tyrannies are built on, and the judge was right to reject it. Instead the choice he gave the administration was either to come up with a more compelling rationale for the program's existence or accept at least some new restrictions on the government's snooping.

In his decision handed down Tuesday, federal District Court Judge Richard J. Leon sharply questioned the legality of the NSA's intelligence gathering. Until now the agency has enjoyed virtual carte blanche to snoop on anyone anywhere in the world. That hardly comports with traditional notions of a citizen's right to be free of unreasonable government searches and seizures. "I cannot imagine a more 'indiscriminate' and 'arbitrary' invasion that this systematic and high-tech collection and retention of personal data on virtually every single citizen for the purposes of querying and analyzing it without prior judicial approval," Judge Leon wrote. "Surely, such a program infringes on 'that degree of privacy' that the founders enshrined in the Fourth Amendment."

Judge Leon's misgivings echoed those voiced by civil liberties groups and privacy advocates who have long criticized the secret Foreign Intelligence Surveillance Court that is supposed to make sure the government's spying activities pass constitutional muster. Because the court's deliberations and decisions as well as the cases it hears are all secret, there's no way for the public to know what the NSA is doing with the information it collects or even whether its spying operations are making the country safer. This week's case was the first ever to involve citizens who were not criminal defendants, and also the first to take place in an ordinary federal courtroom open to public scrutiny. The fact that it also represents — perhaps for those reasons — the first successful legal challenge to the NSA's electronic surveillance programs suggests that the FISA court's previous approvals of such operations were largely rubber-stamp decisions.

But at some point the Constitution has to be respected if Americans don't want to end up living in a police state. We still don't know the full extent of the NSA's electronic surveillance capability, but it's clear that the technology has reached the point where, as Judge Leon noted, it far outstrips the legal framework erected by earlier precedents to protect citizens' against unwarranted government intrusion.

It's also worth remembering that we probably still wouldn't know the extent of the NSA's spying if not for the revelations leaked to the media since last June by former NSA contractor Edward Snowden. Mr. Snowden has been praised as a hero by some and condemned by others as a traitor, but there's little doubt he has done more to raise public awareness of the issue than anyone else. Whatever else he may have accomplished by leaking classified documents, he has ensured that the meaningful oversight of the agency will remain a matter of intense public discussion.

The NSA not only is keeping track of who we communicate with, when we communicate and for how long, it also can follow our day-to-day, minute-by-minute movements from place to place, not only in the virtual world of cyberspace but in the real world as well. One can fully accept the need for constant vigilance against those who would do the country harm and still be wary of having a Big Brother constantly looking over our shoulders.

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