A top Justice Department lawyer said on Tuesday that the "relatively low" standard the NSA uses to decide whether it can search its massive phone records database is good enough -- because it's the same one cops apply before they stop and frisk a suspect.
Deputy Attorney General James Cole's argument before the House Intelligence Committee was supposed to be reassuring. But his stop-and-frisk analogy was an awkward one, coming on the heels of a widely publicized judge's ruling that the police practice is being used unconstitutionally in New York City.
When the NSA is searching phone records, Cole argued, a "reasonable, articulable suspicion" that someone is connected to terrorism is sufficient. That's the same standard that cops use to decide whether they have enough suspicion of a crime to stop someone on the street.
The NSA says it only actually searches its billions of records of Americans' phone calls when it has that suspicion that someone is linked to terrorism. Like a cop on the street deciding whether to stop a suspect, the agency doesn't go to a court to seek approval of individual searches. Instead, the Foreign Intelligence Surveillance Court only approves the general guidelines for phone records searches.
House Intelligence Chairman Mike Rogers (R-Mich.) asked if the NSA should first have to seek approval from a federal prosecutor when it has "reasonable, articulable suspicion" before searching its phone records database for connections to terrorists, or "would that be too cumbersome, would that not be workable?"
"If you look at the analogy, the other place that the reasonable, articulable suspicion standard is used in our system is for police officers to determine whether they can stop and frisk somebody," Cole replied.
"They have to have reasonable, articulable suspicion that that person is engaged in some sort of activity that could be illegal. And that's a decision that's made by the cop on the street, at the time, and it's meant to be a relatively low standard, but a protective standard, to allow them to do this for public safety."
The Justice Department maintains that because we willfully hand our phone call data over to third-party cellphone and landline companies, we have no reasonable expectation of privacy for information about who we call, when, and for how long.
"We're in an area where we're applying [the standard] in an area where there's not any constitutional protection," Cole argued, "and we're applying it in a way that I think needs to be nimble."
Even those "nimble" rules, however, haven't always been nimble enough for the NSA. In 2009, Foreign Intelligence Surveillance Court judge Reggie Walton blasted the government for its "flagrant violation" of the reasonable, articulable standard. It turned out that the government had put 16,000 phone numbers on an "alert list" to be monitored, without bothering to explain their connection to terrorism.
Cole's analogy isn't just awkward because of all the bad publicity stop and frisk has received: Earlier this year, the Justice Department itself backed the creation of an independent monitor to watch over the NYPD's use of stop and frisk.