Wednesday’s action in the House of Representatives to defund the National Security Agency’s phone-record collection program revealed an interesting split among lawmakers. The vote barely preserved the program. Had just seven Republicans broken ranks and voted yes, the amendment would have been adopted, and NSA snooping banned.
At issue is the NSA’s secret collection of every American’s phone records. This effort vacuums up the phone logs of every call made by every U.S. citizen in the country: mine, yours, your grandmother’s – even Yankees’ shortstop Derek Jeter’s phone records are collected by the NSA.
Defenders, both Republicans and Democrats, argued that the program was necessary, that it was overseen by the courts, that it was constitutional. These lawmakers say the government only searches through the phone records it has stored up when a court allows it to.
Leave aside the question of whether you believe that or not. This defense raises another, more fundamental question: Why is the government collecting everyone’s phone records to begin with?
Bureaucrats and legislators claim that gathering together everyone’s phone information – known as metadata – is authorized by Section 215 of the Patriot Act, but it never explains why that section justifies collecting records of every phone call made by every American.
Why doesn’t the government explain itself? Probably because it would be an extremely difficult case to make.
Section 215 lays out the conditions under which federal officials can collect business, personal, or other records while investigating terrorism or other foreign-intelligence cases, and the standard it sets is pretty clear. If the government wants records – like phone metadata – it must present “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation…”
In other words, before it can obtain anyone’s phone records, an agency must show a federal judge a list of facts proving that those records are relevant to a terrorism investigation. It can’t merely make an argument that it needs the records; it must present a list of demonstrable facts proving the records are relevant.
Let that sink in. Feds need a list of facts proving everyone’s phone records are relevant to terrorism. Everyone.
Assuming the government follows the law, here is an example of what happens: Every so often, the NSA presents to a federal judge a list of facts that it claims proves that Derek Jeter’s phone records are relevant to a terrorism investigation. Though this sounds silly, it’s entirely true; Mr. Jeter’s phone records get collected just like yours and mine do, and in order to collect them, the government must prove that we’re all somehow connected to their terrorism investigation.
Is the government full of Mets fans? What on Earth could these facts possibly be? What list of facts could the government come up with that proves Mr. Jeter’s phone records are relevant to terrorism? What list of facts could prove that’s true of most Americans?
We’ll never know because the facts and even the court they’re presented in are secret, but it’s probably safe to assume the feds aren’t getting too caught up in the details. However, if the government is following the law, then it’s saying that you, me and Derek Jeter are all somehow wrapped up in international terrorism.
Matt Cover is Content Editor at Rare. Follow him on Twitter @MattCover