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Obama gives cover to NSA intrusions

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Bothered that the government has the metadata from all your calls, so that it can map out the details of your life at the click of a button? If you really are, little in President Barack Obama’s much-hyped speech on intelligence gathering should allay your concerns.

True, Obama announced that he would "end" the metadata- collection program "as it currently exists." But he never explained how, ignoring the recommendations of his own handpicked review group and instead asking his administration for new technical options on the bulk storage of data by the end of March.

If you remember the president’s promise to close the prison at Guantanamo Bay, Cuba, you know that "ending" something means doing it subject to realistic constraints — which may keep the program from ending at all. And if you don’t have short-term amnesia, you’ll recall that the Obama administration isn’t exactly bristling with skilled high-tech advisers who can build complicated new solutions to technological problems.

The president must have realized that skeptics might be unimpressed by a promise to try to do something unspecified at an indeterminate future time. So he added some reforms related to the bulk collection of metadata that could be implemented right away. In one, he announced that the intelligence community would from now on only "pursue phone calls that are two steps removed from a number associated with a terrorist organization instead of three." In the other, he directed the attorney general to arrange that "during this transition period" the database would be queried "only after a judicial finding, or in a true emergency."

On the surface, these proposals sound pretty substantial — but they aren’t. In a game of Six Degrees of Osama bin Laden, the move from three "hops" to two is minimal. If the suspected target phone numbers belong to people in the United States, the odds are good that they have called some widely used number — the Comcast helpline, for example. Anyone else who has ever called that number would still be within bounds. Your friends’ friends are still two hops away, even if your friends’ friends’ friends’ are now not within the standard range. Ask yourself: Would the intelligence community have agreed to the three to two reduction if they thought it would substantially reduce their capacity to monitor terrorists?

Querying the bulk database only after a judicial finding sounds much better. Yet the president never said that he was talking about an individualized or specific judicial finding. The Foreign Intelligence Surveillance Court has already approved the most general requests imaginable. Those that already exist could well be included in the words "after a judicial finding" — which would mean no change at all during this "transition." And what, pray tell, counts as a "true emergency" in the context of counterterrorism?

As for the longer-term solutions, the president could have announced that the government would no longer hold onto the bulk-collected metadata. The review panel recommended this change. And it was no congeries of radicals. The five men included, among others, Michael Morell, the former deputy Central Intelligence Agency director; Richard Clarke, White House counterterrorism adviser under Bill Clinton and George W. Bush; and former Obama administration official (and my Harvard and Bloomberg View colleague) Cass Sunstein.

Obama rejected the group’s recommendation of leaving the metadata with the companies that generated it in the first place. His proffered explanation was that that relying on the telecommunications companies might require them "to alter their procedures in ways that raise new privacy concerns." Maybe — but the argument misses the very essence of the liberty to privacy that is involved here.

When you make a phone call, you know the telephone company has the information about that call. But you trust the telephone company not to exploit that information to track your patterns of movement and affiliation (at least not without your consent), because it is a private firm that would be heavily criticized if it did so.

The government, on the other hand, is a completely different story. Without specific legal or constitutional prohibitions on accessing your metadata, the government has no reason whatever not to sneak a look.

Put another way, I may have privacy interests relative to my phone carrier, but I don’t have privacy rights unless the law creates them. And constitutional rights, at least, are in U.S. restricted to protecting me against the government, not against private parties acting entirely on their own.

All this comes back to the question of whether you really care that the government might be looking. One way to read the minimal changes suggested by Obama’s speech is that the administration is gambling that you don’t. The public may have been temporarily upset by Edward Snowden’s revelations. But to the extent We the People are made up of Gmail users, we simply may not care that much about metadata privacy. If this is right, there will be no significant negative reaction to Obama’s speech, and the intelligence community can get back to business more or less as usual.

Left on the margin will be those of us who, in our old-fashioned way, think that the government’s intrusions into our privacy are more to be feared than private industry’s — and that the Constitution was designed to protect us from the government that is itself supposed to protect us.

 

Noah Feldman, a law professor at Harvard University and the author of Cool War: The Future of Global Competition, is a Bloomberg View columnist.

— Bloomber News

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