The Sept. 11, 2001, terrorist attacks changed the United States’ outlook about anti-terrorism efforts. Warrantless wiretapping conducted during the presidency of George W. Bush ratcheted up Americans’ concerns about government’s prying eyes (and ears). And Edward Snowden, a former NSA analyst and current leaker of government data now living in Russia, this year turned his former employer into a front-page story.
On Monday in Washington, U.S. District Judge Richard J. Leon struck down the NSA’s policy of collecting telephone data for all calls in the United States, ruling that it was unconstitutional. Leon also delayed the ruling to give the government time to appeal.
The effect of technological changes on data collection may be an interesting, if not odd, stance for the court to take, but it is at the heart of the judge’s ruling. Whereas authorities in previous generations could collect only as much data as their pens or copy machines could manage, today’s data-collectors can copy virtually any amount of data, legal or otherwise, at the click of a button.
In other words, Leon wrote, “The almost Orwellian technology that enables the government to store and analyze the phone meta-data of every telephone user in the United States is unlike anything that could have been conceived in 1979” when the Supreme Court ruled that phone records did not have Fourth Amendment protection.
It is the era of Snowden and Julian Assange of Wikileaks. They are now-infamous leakers who have used the Internet and its unlimited ability to collect, transfer and publish data to pursue their agendas. The NSA’s bulk data collection, which remains in place because of the ruling’s delay, falls neatly into this era.
In fairness to the Pentagon Papers’ Daniel Ellsberg and others who used now-archaic methods to pass along vital government information, there may be no Snowden, Assange, Wikileaks or NSA controversy without today’s ubiquitous advances in the Internet and personal computing.
We remain firmly in the camp of those troubled by the NSA’s actions; Angela Merkel, the German chancellor, was right to criticize President Barack Obama for the NSA’s possible intrusions on the privacy of German citizens. Nonetheless, we understand why the Obama administration has chosen this secretive path.
Those who may inflict harm against the United States and its allies have access to the same technology. Learning about bad guys’ intentions takes a fair amount of espionage, a covert action much older than our own government.
Interestingly, Leon chose to poke a finger in the eye of those at the White House who defend the NSA’s actions. “The government does not cite a single instance in which analysis of the NSA’s bulk data collection actually stopped an imminent attack,” he wrote.
That is a damning, though not ultimate, judgment.
Expect this courtroom battle over the NSA’s telephone snooping to drag well into 2014, if not beyond. We’d expect also that the Obama administration doesn’t plan to rein in the government’s ever-expanding use of today’s technology.