It's time to put an end to NSA's bulk collection of Americans' metadata

April 29, 2015

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

— The Fourth Amendment of the U.S. Constitution

The authors of our Bill of Rights included the Fourth Amendment because they knew that one of the best protections against tyranny is to limit the government’s power to search its citizens.

Specifically, the Framers wanted to ensure that the federal government could not issue broad general warrants that would empower the executive branch to indiscriminately rummage through the private lives of American citizens — in other words, to spy on them. Unfortunately, that is exactly what the National Security Agency is doing today.

No, the NSA is not secretly taping every American’s phone calls. But it is collecting the “metadata” — who called whom and when — for every one of those calls. By themselves, each of these data points may look a lot like a harmless business records. That is why in 1979, before technology made it possible to aggregate those data points, the Supreme Court held in Smith v Maryland that the government could collect them without a warrant.

But when those data points are compiled by the thousands on just one person, or by the trillions on  Americans as a whole, it becomes a different question entirely. Last year researchers at Stanford University found that metadata like that collected by the NSA under Section 215 of the Patriot Act could be used to uncover a lot of private information about a person, including his politics, what medications he takes, where he goes to church, and more. In short, this metadata can be used to paint a fairly complete picture of the private lives of every person in this country.

In a perfect world we could trust that the federal government would not abuse this power. But we do not live in that world.

In short, this metadata can be used to paint a fairly complete picture of the private lives of every person in this country.

In 2012, the director of National Intelligence, James Clapper, testified under oath before the United States Senate that the NSA was not collecting data on hundreds of millions of Americans. When it was later revealed that the NSA was doing just that, and had been for over a decade, Clapper admitted to the Senate Intelligence Committee that his earlier testimony was “clearly erroneous.”

If the government’s highest officials are willing to testify falsely under oath about domestic surveillance, we simply cannot trust them with the power to construct a massive database of every American’s telephone and e-mail communications.

That is why I am co-sponsoring the USA Freedom Act with Senate Judiciary Committee ranking member Patrick Leahy (D., Vt.) as well as Senators Dean Heller (R., Nevada), Dick Durbin (D., Ill.), Ted Cruz (R., Texas), Al Franken (D., Minn.), Lisa Murkowski (R., Alaska), Richard Blumenthal (D., Conn.), Steve Daines (R., Mont.), and Chuck Schumer (D., N.Y.). House Judiciary Committee chairman Bob Goodlatte (R., Va.), Ranking Member John Conyers (D., Mich.), Representative Jim Sensenbrenner (R., Wisc.), and Representative Jerry Nadler (D., N.Y.) are introducing an identical bill in the House.

Our bill bans the bulk collection of domestic-telephone and e-mail records while still maintaining the government’s ability to collect necessary intelligence in a more targeted and traditional manner. And we need to act fast.

Section 215 of the Patriot Act, the law authorizing the government to collect domestic materials needed for terrorism investigations, is set to expire on May 31, 2015. If Congress does nothing, our nation’s intelligence agencies will lose this tool entirely.

Majority Leader Mitch McConnell (R., Ky.) has introduced a separate bill that would reauthorize Section 215 of the Patriot Act without any reforms. This bill would preserve the existing system — the one Director Clapper came before the Senate and gave false testimony about to mislead Americans — completely unchanged.

That is simply unacceptable.

More urgently, however, the votes for a clean reauthorization of Section 215 of the Patriot Act just don’t exist. The Senate doesn’t have the needed 60 votes for such a reauthorization, nor does the House have the needed 218 votes.

The only way our intelligence agencies will be allowed to keep this valuable program is through the USA Freedom Act.

“If men were angels,” Federalist 51 reads, “no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

Whether it be a British king’s general warrant or a computer collecting metadata, a fishing expedition through innocent people’s private records violates citizens’ privacy, invokes partisan persecution, and threatens liberty. The defense of that principle was one of the reasons our country was founded.

We need to restore a vital check on government power by passing the USA Freedom Act and ending the bulk collection of Americans’ private information.

Op-ed originally published by National Review Online