Sunlight Slays Secret Snooping

Why Obama changed his mind about the NSA's phone record dragnet

Testifying before the House Judiciary Committee last July, Deputy Attorney General James Cole explained why the National Security Agency (NSA) needed to collect everyone's telephone records. "If you're looking for the needle in the haystack," he said, "you have to have the entire haystack to look through."

Judging from the changes that President Obama recommended last week, he has decided that looking for a needle in a haystack might not be the smartest way to prevent terrorist attacks. Obama's decision to eliminate the NSA database he once defended as essential to national security shows how important transparency is in protecting civil liberties, since he thought everything was fine as long as it was secret.

Under Obama's proposal, information about who calls whom, when, and for how long will be retained by the phone companies, not the NSA. It will be preserved for the usual 18 months, as opposed to the five years of data held by the NSA. To obtain information about a particular number, the government will need a specific court order based on reasonable, articulable suspicion that the number is associated with a terrorist or a terrorist organization, rather than a blanket order covering all phone records.

"I am confident that this approach can provide our intelligence and law enforcement professionals the information they need to keep us safe, while addressing the legitimate privacy concerns that have been raised," Obama said last Thursday. Yet none of these reforms would have happened if former NSA contractor Edward Snowden had not revealed the existence of the phone record program, a public service that Obama views as a crime.

Even after news reports based on Snowden's leaks appeared last June, Obama described the NSA's snooping as "modest encroachments on privacy" that "help us prevent terrorist attacks." He claimed all three branches of government had approved the phone record database, since he thought it was OK, judges had secretly signed off on it, and several members of Congress had been briefed.

In short, there was no need to be concerned. "We have established a process and a procedure that the American people should feel comfortable about," Obama said in June.

Polling data from the Pew Research Center suggest that the effect of the president's assurances was the opposite of what he intended. By January, when Obama said he had been persuaded that the process and procedure governing the NSA's access to our personal information could use some improvement after all, 53 percent of Americans were against the phone record database.

It did not help that the administration could not cite a single case in which the database had been crucial in thwarting a terrorist plot. Or that the legal justification for the program, based on the premise that all phone records can be deemed "relevant" to a terrorism investigation under Section 215 of the PATRIOT Act, seemed like a big stretch, even to the guy who wrote the PATRIOT Act.

At the same hearing where James Cole insisted that the government needs all our hay in one place, Rep. James Sensenbrenner (R-Wis.), the PATRIOT Act's main author, warned that Congress would not extend Section 215, which is scheduled to expire next year, "unless you realize you've got a problem." Two weeks later Sensenbrenner joined 204 of his colleagues—93 Republicans and 111 Democrats—in voting for an amendment aimed at cutting off funding for the phone record program. Although leaders of both parties opposed the measure, it failed by just a dozen votes, and several Democrats who voted no reportedly had strong reservations.

The amendment's supporters realized that the information dismissed as "just metadata" by Senate Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.) can be highly revealing, amounting to "a federal human relations database," as Sen. Ron Wyden (D-Ore.) puts it. Despite Obama's claim that Congress had no objection to the NSA's haystack, legislators rebelled at the idea that their personal information could be treated like so much straw.