Metadata Is Here to Stay. What Do We Do About It?

Military analysis.
Dec. 19 2013 5:24 PM

Metadata Isn’t Going Away. Here’s How to Control It.

What we can learn from Judge Leon’s opinion and the recommendations of a presidential commission.

(Continued from Page 1)

The commission report’s 46 proposals consist mainly of safeguards—speed bumps, hurdles, barriers—to prevent, or at least slow down, the erosion of civil liberties, whatever the political climate. (The report’s title is “Liberty and Security in a Changing World.”)

One of its main proposals is to store all metadata with a separate, possibly private, organization. (For example, data gathered by phone companies and ISPs would stay within the phone companies and ISPs.) If the NSA wanted to retrieve and search through these databanks, it would need to file a request for specific information with the Foreign Intelligence Surveillance Court.

Under current arrangements, the NSA can search the banks on its own. The internal requirements for doing so are much stiffer than they used to be. Not long ago, a clever analyst could dip into the data and check up on his girlfriend; there are a few cases in which someone actually did this. Now, according to one insider, any probes require two high levels of review and the approval of the agency’s general counsel. But of course, this isn’t enough. First, who's going to believe that? Second, just as those compliance standards were put in place internally, they can be repealed internally (and without outsiders knowing it).

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The report also proposes major changes in the FISA court, which rules on—and usually rubber-stamps—requests for surveillance. The authors recommend inserting a “public Interest Advocate” in the court’s hearings, installing tech-savvy advisers on the court’s staff, declassifying court rulings after a certain period of time, and drastically changing the way the FISA court judges are appointed. Currently, they’re all named by the Supreme Court’s chief justice; i.e., all the judges ruling on these beyond-top-secret matters today are Roberts-appointed Republicans. The report recommends spreading out the appointments among several justices. These ideas have been proposed by a number of outsiders, the last two by … well, me. It’s good to see them get some official imprimatur. (Any changes to the FISA court would have to be approved by Congress.)

In a surprise, little-noted chapter, the report also proposes reforms in the rules governing National Security Letters. These letters require people or institutions to turn over information to the government, usually to the FBI, and they are so secret that the recipients are forbidden from telling anyone that they received one. Many, perhaps most, of these letters are addressed to phone companies or ISPs and seek metadata to help agencies as part of criminal or terrorist investigations. Yet, unlike similar NSA requests for metadata sweeps, they require not even the fig leaf of FISA court approval. The report recommends that the National Security Letters go through the same oversight.

Of course, the commission’s recommendations amount to small stuff compared with the Dec. 16 opinion by U.S. District Court Judge Richard Leon that the NSA’s metadata program is probably unconstitutional. In an impassioned 68-page memorandum, Judge Leon argued that Smith vs. Maryland, the Supreme Court decision often cited to support the program’s legality, “simply does not apply” to the scope of surveillance revealed in the Snowden documents. If this opinion became law, metadata collection would simply be outlawed.

However, it’s very doubtful that Judge Leon’s opinion will survive an appeals court or, if it goes higher, the Supreme Court. First, district court judges don’t have the authority to reject the appropriateness of precedents cited by higher courts. (Judge Leon doesn’t quite go that far, but he skates right up to the edge.) Second, some constitutional lawyers, including those who sympathize with him politically, doubt the opinion’s legal validity. Third, higher courts tend to give even the slightest benefit of doubt to the executive branch in cases involving prerogatives of “national security.”

There’s no question, though, that metadata collection, as it exists, at the very least rubs up against Fourth Amendment guarantees, and someone—in the courts, the Congress, or the executive branch—is going to have to untangle the dilemmas at some point.

Meanwhile, the report by the President’s Review Group on Intelligence and Communications Technologies—as the commission is officially called—strikes a realistic and, as these things go, far-reaching set of checks and balances. Very likely, metadata collection is here to stay. It is simply too powerful a tool for any nation to abandon (and the United States is far from the only nation to have it). This being the case, the question is how to control the beast, how to keep it from becoming a truly dangerous weapon. The commission’s report does that, for now. If President Obama doesn’t adopt its key proposals, that will be a major failing.

Also in Slate, read more about the recommendations from the President’s Review Group.

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