President Obama says his spying overhaul is aimed at balancing privacy and security, but the power to draw that line may not be his for long.
Regardless of their impact on public perception, Obama's proposed reforms to the National Security Agency do little to address the administration's legal woes. And they've thus far done nothing to persuade the NSA's legal opponents to drop lawsuits aimed at forcing — rather than asking — the administration to change its ways.
If the Supreme Court sides with the president's critics, the Obama administration's self-policing would be replaced by a legal order.
The legal fight centers around the NSA's collection of phone records — such as numbers, call times, and call durations — on virtually all U.S. calls. For his part, Obama has insisted all along that the NSA's surveillance is perfectly legal, although he has said some changes are necessary to restore the public's trust.
The problem with Obama's changes, the privacy advocates say, is that they don't address the core legal questions: Their first argument is that Congress never authorized the program; the second is that the program violates the constitutional rights of millions of Americans.
The NSA claims the program is authorized under Section 215 of the USA Patriot Act, which gives the government the power to collect business records "relevant" to a terrorism investigation. The NSA argues it needs the full phone database to track possible terrorist cells, but the privacy advocates claim the agency is grossly distorting the meaning of "relevant."
And Republican Rep. Jim Sensenbrenner, the original House author of the act, has said Congress never meant to approve such sweeping surveillance.
Under Obama's reforms, which take effect immediately, the NSA needs approval from the Foreign Intelligence Surveillance Court every time it wants to search through its vast database of phone records. Obama also reduced the degrees of separation that NSA analysts can stray from their initial target from three to two
The program's critics, however, are determined to pare it back further.
"Until the government ends bulk collection, the lawsuits should go forward," said Alex Abdo, an attorney for the American Civil Liberties Union who is handling the group's case against the NSA. "I don't see how anything short of that will affect the posture of those cases."
"The collection itself is what violates the Fourth Amendment. The government is not entitled to create a database of information for which they should be obtaining a warrant before collecting," he said. "So the fact that they have slightly stronger protection on the back end doesn't answer the question of whether they should be obtaining a warrant to begin with."
The ACLU's suit is part of a broader legal onslaught.
A federal judge in Washington ruled last month that the NSA program is unconstitutional in a case brought by conservative activist Larry Klayman. But another federal judge in New York rejected the ACLU's lawsuit. Both cases could be heard by federal Appeals Courts sometime this year.
The Electronic Frontier Foundation, which is representing a coalition including a Unitarian Church and a gun-rights group, is awaiting a decision at the District Court level in California on its lawsuit against the NSA.
The lawsuits received a boost last week when the Privacy and Civil Liberties Oversight Board, a government watchdog agency, concluded that the bulk data collection is illegal and should end.
The president may be open to further modifications of the program, but he has given no indication that he plans to abandon it entirely. He asked Attorney General Eric Holder and top intelligence officials to come up with a plan for the government to give up control of the phone database.
But the details of how the program could still operate without the NSA maintaining the database remain murky. The government could set up some kind of entity that would hold the data and allow the NSA to mine through it.
Cindy Cohn, the legal director for the Electronic Frontier Foundation, said that from a legal standpoint, it doesn't matter if some new entity holds the data instead of the NSA.
"The government doesn't get to outsource unconstitutional behavior," she said. "If the third party is just acting as the government's agent, that doesn't change the legal analysis at all."
The government could also allow the phone companies to hold on to the data themselves. Keeping the data with the phone companies could bolster the government's case, the privacy advocates admit.
But the NSA would still want easy access to the phone records to map possible terrorist connections across all of the different providers. That could mean the government would impose a mandate on the companies to retain their customers' records. A data-retention mandate would raise a new host of privacy and legal problems, the advocates say.
Andrew Ames, a Justice Department spokesman, declined to comment, citing the ongoing litigation.
Stewart Baker, a former NSA lawyer and Homeland Security Department official who currently works in private practice, agreed that Obama's changes to the NSA don't help the government much in court.
But he argued that the privacy groups have never had a particularly strong case against the NSA.
"They look like losers to me," Baker said of the lawsuits, noting that 15 judges on the Foreign Intelligence Surveillance Court have endorsed the government's position in secret cases over the years.
Ever since a 1979 Supreme Court decision, the courts have typically held that people have no expectation of privacy over metadata such as phone numbers and call times (as opposed to the contents of communications). The courts are also often reluctant to rule against the government with national security at stake.
Baker predicted that the Supreme Court will never actually address the legality of the controversial NSA program. Instead, Congress will be forced to take a position on the program when the USA Patriot Act comes up for reauthorization next year.
At that point, lawmakers will have to choose between ending the program entirely or renewing the program with some privacy changes, Baker said.
"It'll be a choice between 'yes, but' and 'hell, no,' and the question is what follows the 'but.' How many changes are going to be made to try to win a majority of both houses for renewal?"
This article is from the archive of our partner National Journal.
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