Analysis: NSA Reforms Don't Address Biggest Problems

Good first steps, but not far enough

The reforms announced today will certainly help address some of the greatest privacy concerns raised by U.S. surveillance. But the speech will probably be remembered most for the much-needed reforms it didn't announce.

First, outsourcing the retention of call records to private companies is a fig leaf that conceals the real issue: the legal standard for access. The President would let the NSA access meta-data if it can establish "reasonable suspicion that a particular number is linked to a terrorist organization." This standard is too low to protect the privacy of the innocent. In general, the Fourth Amendment requires a "probable cause" showing before a court may issue a warrant. The courts are struggling to address this issue based on a confusing series of 1970s cases about wiretapping. They seem to be moving, cautiously, to restoring the Founders' understanding: there is one Fourth Amendment for all technologies, just as there is one First Amendment for all media. Until they do that, it's up to Congress and the President to fix the problem.