THE BLOG

The NSA's Telephone Meta-Data Program: Part III

12/31/2013 11:34 am 11:34:59 | Updated Mar 02, 2014

In my last post, I explored the pros and cons of the NSA's bulk telephony meta-data program. As I reported, after considering all the competing interests and perspectives, the Review Group concluded that, in light of the availability of other means by which the government could achieve its legitimate objectives, there was "no sufficient justification to allow the government itself to collect and store bulk telephony meta-data." The Review Group therefore recommended that the meta-data program, as currently constituted, "should be terminated as soon as reasonably practicable."

At the same time, though, the Review Group found that access to telephony meta-data can be useful to the government in its effort to identify terrorists operating inside the United States. The challenge was to figure out how best to preserve the legitimate value of the program while at the same time reducing its risks to personal privacy and individual freedom.

To strike a better balance, the Review Group recommends several important changes in the program as it currently exists.

First, and perhaps most important, the Review Group recommends that the government should not be permitted to store the telephony meta-data. The Review Group reasoned that taking the meta-data out of the hands of government would substantially reduce the potential for government abuse. The Review Group therefore recommends that the telephony meta-data should be held by private entities. That is, the meta-data should be held either by the various telephone service providers themselves or, upon a showing that that solution would make effective use of the meta-data impossible, by a private organization created specifically for that purpose. This approach would both prevent the government from having direct access to the database and ensure that an independent set of eyes could monitor the government's access to the information.

Second, the Review Group recommends an important change in the way the government can access the database. Under the current program, NSA analysts themselves determine whether there is a sufficient justification for the government to query the database. The Review Group recommends that that should no longer be possible. Rather, the government should be required to obtain a judicial order before it is allowed to query the database. This requirement would place yet another set of eyes on the government's access to the meta-data and, more important, require a neutral and detached federal judge, rather than an NSA analyst, to decide in each instance whether the government has reasonable grounds to believe that a particular telephone number is in fact associated with terrorist activity.

Third, the Review Group recommends that the telephony meta-data should be held by the private entities for no longer than two years. This recommendation sharply restricts the size and scale of the database, which is currently held by the government for a period of five years.

Fourth, the Review Group recommends that any judicial order authorizing the government to query the database must, like a subpoena, be "reasonable in focus, scope, and breadth," thus ensuring that the scope of the government's access to the database must in each instance be "reasonable," as determined in advance by a federal judge.

Fifth, the Review Group recommends that "legislation should be enacted requiring that detailed information" about the section 215 telephony meta-data program "should be made available on a regular basis to Congress and the American people to the greatest extent possible, consistent with the need to protect classified information." Indeed, "there should be a strong presumption of transparency to enable the American people and their elected representatives independently to assess the merits of the program for themselves."

Sixth, and more generally, the Review Group recommends that "the decision to keep secret from the American people programs of the magnitude of the section 215 bulk telephony meta-data program should be made only after careful deliberation at high levels of government and only with due consideration of and respect for the strong presumption of transparency that is central to democratic governance." "A program of this magnitude," the Review Group recommends, "should be kept secret from the American people only if (a) the program serves a compelling governmental interest and (b) the efficacy of the program would be substantially impaired if our enemies were to know of its existence."

Our conclusion was that, with these recommendations in place, the government can legitimately make use of the telephony meta-data in its critically important effort to keep our nation safe, while at the same time respecting America's core commitment to the values of privacy, individual freedom, and democratic self-governance.

Predictably, some people charge that the Review Group's recommendations strip the Intelligence Community of the capacity to protect our nation, whereas others charge that our recommendations do not adequately protect our freedoms. For the most part, though, our recommendations seem to have been welcomed as important and reasonable measures designed to recalibrate the balance between security and liberty.

I am particularly concerned about those who resist these recommendations from the national security perspective, because they are the ones who seek most ardently to preserve the status quo. Their concern is that, if adopted, these recommendations will make it more difficult for the Intelligence Community to prevent terrorist attacks.

In our judgment -- and it is important to emphasize that the Review Group includes two members who are deeply steeped in the operations of the Intelligence Community -- Richard Clarke, a former member of the National Security Council, and Michael Morell, a former Deputy and Acting Director of the CIA -- these reforms leave ample room for the government to keep us safe.

Moreover, it is important to emphasize that trade-offs are both necessary and proper in this, and every, realm of life. Although we must protect the national security, there are many things we do not do even though they might help achieve that goal. We do not search homes without probable cause; we do not torture individuals to get information; we do not prevent the press from publishing government secrets, to cite just three of many possible examples.

And, of course, every day the government -- including the Intelligence Community -- makes trade-offs in terms of resources. There are many things we do not do, even though they might make us marginally safer, because they cost more than we are prepared to pay. If we can make trade-offs for reasons of money, we can surely make trade-offs for reasons of privacy and freedom.

In the current situation, a new balance is warranted for at least three reasons. First, now that we have had experience with the meta-data program, we can more accurately assess its costs and benefits than when it was first adopted. With that additional information, we can now make a better -- and more informed -- assessment of how to balance the competing interests. Such continuing re-assessment is essential to good government.

Second, when the meta-data program was first created it was adopted in secret. There was therefore no meaningful input from those who are especially concerned with protecting privacy and individual freedom. With that perspective now added to the analysis, it is possible to strike a better balance with a fuller understanding of the competing interests. (Indeed, the absence of the privacy/civil liberties perspective in the decision making process is the subject of other important recommendations of the Review Group.)

Third, the plain and simple fact is that public trust in the Intelligence Community in general, and the NSA in particular, has suffered as a result of recent disclosures. As we emphasize in our Report, this is unfortunate, because in implementing the authorities and responsibilities given to it by the Executive, the Congress, and the courts, the NSA has in fact acted responsibly. The real question, in our judgment, is not about the actions or integrity of the NSA, but about the scope of the authorities it has been granted. In terms of understanding the current debate, this is an important distinction.

But be that as it may, there is now a serious issue of public trust. For the Intelligence Community to operate effectively in the long run, it must have the confidence of the American people. If the Intelligence Community digs in its heels and reflexively fights these reforms, it will do itself serious harm.

More than anything else at the moment, the Intelligence Community needs to win back the trust of the American people. It can do that, not by being defensive, but by acknowledging that periodic review, reexamination and recalibration are healthy and constructive in a self-governing society, and by bending over backwards to embrace reforms that will help restore the public's trust.

In my next post, I will discuss the constitutionality of the section 215 bulk telephony meta-data program as it currently exists. This is a "hot" issue of late, because two different federal courts have reached sharply divergent conclusions on this question.