Constitution Daily

Smart conversation from the National Constitution Center

Metadata’s value debated as Obama’s NSA speech approaches

January 13, 2014 by Scott Bomboy


President Barack Obama will announce recommended changes to the National Security Agency’s surveillance policies this Friday, as a debate continues about a controversial phone-number collecting policy.

Nsa_signThe revelations last year by former NSA contractor Edward Snowden that the NSA kept phone metadata (phone numbers, phone locations, and phone-call durations) in large data warehouses, using blanket permission from a secret court, set off a firestorm of controversy and debate.

The Constitution’s Fourth Amendment spells out that people have protections against unreasonable search and seizures, unless an action is deemed necessary by a judge.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized,” the amendment says.

For years, the government has insisted the data-collection is legal and needed to avert another 9/11-type terrorist attack. But two recent court decisions split on that issue.

And on Monday, there were two conflicting reports about the value of keeping and using vast amounts of seemingly personal information about Americans.

In the Los Angeles Times, reporters Christi Parsons and Ken Dilanian say the Obama administration is convinced that at least part of the 9/11 attacks could have been averted in a bulk metadata collection program had been in place before September 2001.

“In recent White House meetings, Obama has accepted the ‘9/11’ justification, aides say, expressing the belief that domestic phone records might have helped authorities identify some of the skyjackers who later crashed passenger jets in New York, the Washington area and Pennsylvania, killing nearly 3,000 people,” the reporters said.

Also, on Monday a report from the New America Foundation claims that the massive phone-data collection efforts have had little impact on the war on terrorism.

“An in-depth analysis of 227 individuals recruited by al Qaida or like-minded groups, and charged in the U.S. with an act of terrorism since 9/11, shows the contribution of NSA's bulk surveillance programs to these cases was minimal, and that traditional investigative methods were more helpful,” the report says.

That conclusion echoes claims from five scholars and experts who looked at the program for President Obama.

The President's Review Group on Intelligence and Communications Technologies said the government’s bulk collection of phone records was “not essential to preventing attacks.” But it didn’t call for an end to the practice. Instead, it recommended that the phone numbers be collected “by private providers or by a private third party.”

The NSA could then access selected data by proving cause to the Foreign Intelligence Surveillance Court, which would then issue a court order just for specific information requested by the NSA.

On Tuesday afternoon, the President's Review Group on Intelligence and Communications Technologies will be on Capitol Hill testifying before a Senate committee about its recommendations.

The group includes Michael Morell, a former deputy CIA director; Richard Clarke, a former U.S. cybersecurity adviser; Geoffrey Stone, a University of Chicago law professor; Cass Sunstein, a Harvard Law School professor; and Peter Swire, a former member of Obama's National Economic Council.

There were reports on Monday that President Obama will announce on Friday his support for moving the phone-collection archives away from direct federal government control.

However, as reported today in Politico, the President will need congressional action and approval for some reform efforts.

Such an act would not only have Congress as a hurdle. NSA Deputy Director Chris Inglis told NPR last week the courts would have to get involved at some point. (It would be expected that the secret FISA court’s role would be another part of the discussion.)

So on Friday, President Obama isn’t expected to get into specifics about how policy changes will be implemented, since Congress is split on many privacy issues.

Recent Constitution Daily Stories

Podcast: Kerr, Rotenberg on NSA domestic surveillanceJeffrey Rosen interviews Cass Sunstein about the NSA task force recommendationsInside a judge’s ruling on the NSA’s surveillance programsPanel will tell Obama to end NSA phone record collection

Sign up for our email newsletter