Two days after a judge ruled that the National Security Agency’s bulk collection of Americans’ telephone records was probably unconstitutional, the Obama administration on Wednesday released a report in which a presidential task force called for an end to the program. The President’s Review Group on Intelligence and Communications Technologies also suggested other significant reforms in the collection of data about Americans and foreigners. President Barack Obama, who said he welcomed a debate over the activities exposed by Edward Snowden, should take the panel’s advice.
Even supporters of the Patriot Act were stunned when Snowden revealed that the NSA was using a provision of that law to collect on an “ongoing daily basis” information about the source, destination and duration of virtually every telephone call placed in the United States. Intelligence officials said it was necessary to amass this electronic “haystack” to locate “needles” of information that could help in the detection and disruption of terrorist plots.
But, as the report acknowledges, there is scant evidence that bulk collection of phone data has played an essential role in preventing terrorism. Meanwhile, the storage of vast amounts of information by the government “creates potential risks to public trust, personal privacy, and civil liberty,” the report says.
To prevent such abuse, the task force suggests that the data be held by telecommunications companies or some third party. The government could obtain and “query” the data only if it convinced a court that the information sought “is relevant to an authorized investigation intended to protect ‘against international terrorism or clandestine intelligence activities.’”
The task force envisions a system in which requests for information would be more specific and court orders would be “reasonable in focus, scope and breadth.” That would still allow investigators to track the phone activity of people who might have no connection to terrorism, but it would be an improvement over the present dragnet.
The task force also proposes changes in the way the government collects intelligence about foreigners, including foreign leaders, and it sensibly urges U.S. intelligence agencies to refrain from subverting the security of commercially available software.
Viewed overall, its 46 recommendations amount to a recognition that the intelligence apparatus too often has engaged in activities because they were technologically possible, even if they weren’t necessary and even if they compromised Americans’ legitimate expectations of privacy. As Richard Clarke, a member of the task force who served in the George W. Bush administration, put it, “What we’re saying is, just because we can doesn’t mean we should.”