2013 12 19 NYT Turn Off the Data Vacuum – NYTimes.com
Turn Off the Data Vacuum
In the days after one of the biggest national security leaks in United States history revealed the existence of vast, largely unchecked government surveillance programs, President Obama said he would “welcome” a robust national debate over the appropriate balance between protecting national security and respecting individual privacy and civil liberties.
The answer has now landed squarely on Mr. Obama’s desk, with the release late Wednesday afternoon of a remarkably thorough and well-reasoned report calling on the government to end its bulk phone-data collection program and to increase both the transparency and accountability of surveillance programs going forward.
The 300-plus-page report was written by a five-member advisory panel of intelligence and legal experts that was commissioned by the president himself and made 46 recommendations for reform. The recommendations demonstrate how far afield the National Security Agency has wandered in its zeal to vacuum up the phone and Internet data of virtually every American, not to mention world leaders and other non-American citizens.
They also show the lack of regard for the Constitution that has led those efforts, and the virtual absence of supervision and restraint by Mr. Obama and his predecessor, President George W. Bush.
The most far-reaching recommendations are also the most common sense. For example, the report calls for legislation requiring the government to meet a higher standard before it can order a company to turn over private customer records. As it stands, the law puts “extremely broad discretion in the hands of government officials,” the report said.
It also calls for an end to the government’s mass storage of those records, recommending that they be kept by the companies themselves or a private third party in order to prevent government abuse. Otherwise, the report warns, “high-level government officials will decide that this massive database of extraordinarily sensitive private information is there for the plucking.”
“Americans must never make the mistake of wholly ‘trusting’ our public officials,” the authors write.
Among its many other important recommendations, the report singles out the Foreign Intelligence Surveillance Court, whose judges hear arguments in secret from the government alone, with no opposition, and issue classified rulings on significant constitutional issues. The panel said Congress should establish an advocate to argue in those hearings for the privacy and civil liberties interests of the public. And the selection of the court’s judges, which now resides solely in the hands of the chief justice of the United States, John Roberts Jr., should be divided among all the justices of the Supreme Court.
Perhaps most damning of all, the report calls into doubt the central justification for the surveillance dragnet: preventing terrorism. Echoing the finding of a federal judge who ruled on Monday that the phone-data collection program was probably unconstitutional, the report said the data sweep “was not essential to preventing attacks.”
The surveillance programs began before Mr. Obama’s presidency, but he allowed them to continue and grow in unprecedented ways. Lately, he has expressed an openness to reforming the programs themselves and the operations of the intelligence court. One important step would be to support legislation in Congress that would achieve many of the panel’s goals, and codify them to restrain future presidents.
But Mr. Obama need not wait for Congress to act to implement the reforms he said he wants. He can quickly adopt his panel’s recommendation and end the ineffective and constitutionally dangerous dragnet surveillance.