President Barack Obama and Congress appear to be moving closer to a consensus on how to respond to the disclosure that the National Security Agency has been sucking up Americans’ telephone metadata. This is only one aspect of concerns about the NSA that tumbled out of the documents revealed by Edward Snowden, the former contractor who leaked them and then fled the country, winding up in Russia. But congressional action on this issue would be a good start and ought to be at the top of the agenda.
To remind: Telephone metadata holds the details of calls between people — numbers called, time and date. It does not include the actual content of the calls. Congress approved changes to the law after the Sept. 11, 2001, attacks to give the NSA broad writ to retain this metadata to search out potential terrorist and other threats.
While no one has identified a specific person who was hurt by this surveillance, in some sense everyone’s privacy was dented. Public opinion is divided, but in recent months there’s been a growing unease with the NSA programs that scoop up so much information about everyday phone calls.
We have been here before, but we haven’t. In 1975, the investigation of the intelligence agencies led by Sen. Frank Church, D-Idaho, found that Presidents Lyndon Johnson and Richard Nixon pushed the FBI and CIA to surveil antiwar activists, and information was collected on some 300,000 people. From 1952 until 1973, the CIA ran an unlawful mail intercept program that, in its last year in New York, opened some 8,700 items and photographed the outside of 33,000.
The Church Committee warned in 1976, “in an era where the technological capability of government relentlessly increases, we must be wary about the drift toward ‘big brother government.’” The committee was prescient, although no one back then could have imagined that nearly four decades later, the NSA would be vacuuming up several billion records a day.
The president has proposed that bulk telephone metadata remain with the phone companies. To get access in all but emergencies, the government would need an order from the Foreign Intelligence Surveillance Court, and queries would be limited to two hops from the original search, to prevent unbridled fishing expeditions.
Leaders of the House Intelligence Committee have offered a somewhat different approach, which would require the court’s approval after the fact. Proposals in the Senate would impose greater hurdles. Congress needs to hammer this out. The president has given authorization for the current program to continue for 90 more days. We hope he won’t have to do that over and over again.
The country needs a robust, agile and effective NSA in a dangerous world. Nothing should be done that would crimp its ability to collect foreign intelligence. But intelligence agencies also need the confidence of the American people. The latest disclosures have bruised that confidence. It is time for a reasonable fix.