The New York Times report that President Obama will call for an end to the bulk collection of American’s telephone metadata is yet further vindication for Edward Snowden in particular, and for transparency more generally. The only reason the President is proposing this change is because, once the program became public, it was unsustainable in its current form. Congress is considering multiple bills, with bipartisan support, to end or rein in bulk telephone data collection. One court has declared the program unconstitutional. And both the President’s Review Group and the Privacy and Civil Liberties Oversight Board have called for an end to the bulk collection. The PCLOB report in particular was devastating to the legitimacy of the program, demonstrating exhaustively and convincingly that it lacked a sound statutory basis in the first place. But none of this would have happened had the program remained under wraps. It’s too bad that it took a leak to disclose it, but the aftermath makes crystal-clear that this program was sustainable (and sustained) only so long as the American people were kept in the dark about it.
The President’s proposal has not yet been set forth in detail, so it’s too early to say whether it is fully satisfactory. But according to the Times report, the NSA would no longer collect telephone metadata at all. It would leave that to the phone companies, as they already do. And the NSA would only be permitted to search that data pursuant to a specific court order for each search. That means no bulk collection, and that is a good thing. The risk that the government might use such data, maintained in its databases for five years, for purposes other than legitimate searches for terrorists is everpresent, so long as the government maintains the data. And the government’s database was far more expansive than that maintained by any phone company.
It will be important to pay attention to the triggering standard for searches of phone databases. If the Obama proposal sets too lax a standard for searches of the database, risks to innocent peoples’ privacy will remain. And it will also be important to ensure that there are strict limits on what the government can do with the phone records it ultimately collects, as the vast majority of them will still be of innocents. (Under the Obama proposal, the NSA could collect all calls made to and from a particular number, and all calls made to and from any of those numbers). But it will be far better to be fighting over the standards for individual searches and back-end restrictions than over the practice of dragnet data collection itself.
Two lessons seem critical to draw at this juncture. First, there is no substitute for transparency in a democracy. The much-lauded three branches of government did nothing to rein in this program as long as it remained a secret (and at least one member of the executive branch, James Clapper, lied under oath to Congress about the program to keep it secret). And second, once surveillance is subject to public review and assessment, as it must be in any healthy democracy, dragnet surveillance is not likely to last long. By definition, such surveillance implicates us all. The only way to keep it in place is to keep it secret.