The New York Times reports that the Obama administration plans to end the National Security Agency's mass collection of innocent Americans' telephone records, a program that has generated concern and criticism across the political spectrum since it was revealed last summer by newspaper articles based on leaks from former NSA contractor Edward Snowden. Under legislation the administration plans to propose, the Times says, records would be retained by phone companies for the usual 18 months, as opposed to the five years of metadata stored by the NSA. The government could obtain information about particular targets and their contacts through individualized court orders rather than the blanket orders that purport to authorize the NSA's current database. The legislation "would also include a provision clarifying whether Section 215 of the Patriot Act, due to expire next year unless Congress reauthorizes it, may in the future be legitimately interpreted as allowing bulk collection of telephone data." While these reforms are welcome, they should not blind us to three important lessons from this episode:
Everything was fine as long as it was secret. President Obama was perfectly comfortable with the NSA's database until the general public learned that it existed. Even then, he described the routine collection of everyone's phone records—information that can be highly revealing—as a a "modest encroachment" that "the American people should feel comfortable about." Only when it became clear that large numbers of Americans were not in fact comfortable with this massive dragnet did Obama begin to express concern about the privacy threat it poses. The members of the Senate and House intelligence committees also knew about the phone record database before the rest of us did. With a few exceptions, such as Sens. Ron Wyden (D-Ore.) and Mark Udall (D-Colo.), they were not troubled by it either. "This is just metadata," Senate Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.) told reporters after the story broke. The Foreign Intelligence Surveillance Court secretly certified the program as consistent with both the PATRIOT Act (a point disputed by that law's chief author) and the Fourth Amendment. Obama, back when he was defending the phone record dragnet instead of calling for its abolition, argued that all three branches of government had signed off on it—a disconcerting reminder of how national security claims can nullify checks and balances.
The program was essential until it became dispensable. The Obama administration and its defenders in Congress claimed the NSA's mass collection of telephone metadata was essential to national security, but they could not cite a single example of a terrorist attack thwarted by the program. By agreeing to end the database, Obama has conceded that all the talk about how vital it was in protecting us from terrorists was nothing but bluster—a point to keep in mind the next time the government says civil liberties must be sacrificed in the name of safety.
Whistleblowing is a crime. None of the reforms Obama is now advocating would have happened without Snowden's leaks. Neither would the broader debate about privacy and national security that Obama claims to welcome. But according to Obama, the proper reward for this public service is a lengthy prison term. Something is wrong when the man who reveals the government's disturbing surveillance activities is treated as a criminal while the man who endorsed those abuses poses as a privacy advocate.