By: U.S. Senators Ron Wyden, Mark Udall, and Martin Heinrich
The framers of the Constitution declared that government officials had no power to seize the records of individual Americans without evidence of wrongdoing, and they embedded this principle in the Fourth Amendment. The bulk collection of Americans’ telephone records — so-called metadata — by the National Security Agency is, in our view, a clear case of a general warrant that violates the spirit of the framers’ intentions. This intrusive program was authorized under a secret legal process by the Foreign Intelligence Surveillance Court, so for years American citizens did not have the knowledge needed to challenge the infringement of their privacy rights.
Our first priority is to keep Americans safe from the threat of terrorism. If government agencies identify a suspected terrorist, they should absolutely go to the relevant phone companies to get that person’s phone records. But this can be done without collecting the records of millions of law-abiding Americans. We recall Benjamin Franklin’s famous admonition that those who would give up essential liberty in the pursuit of temporary safety will lose both and deserve neither.
The usefulness of the bulk collection program has been greatly exaggerated. We have yet to see any proof that it provides real, unique value in protecting national security. In spite of our repeated requests, the N.S.A. has not provided evidence of any instance when the agency used this program to review phone records that could not have been obtained using a regular court order or emergency authorization.
Despite this, the surveillance reform bill recently ratified by the Senate Intelligence Committee would explicitly permit the government to engage in dragnet collection as long as there were rules about when officials could look at these phone records. It would also give intelligence agencies wide latitude to conduct warrantless searches for Americans’ phone calls and emails.
This is not the true reform that poll after poll has shown the American people want. It is preserving business as usual. When the Bill of Rights was adopted, it established that Americans’ papers and effects should be seized only when there was specific evidence of suspicious activity. It did not permit government agencies to issue general warrants as long as records seized were reviewed with the permission of senior officials.
Congress has a crucial opportunity to reassert constitutionally guaranteed liberties by reforming the N.S.A.’s overbroad collection of Americans’ personal data. But the Intelligence Committee bill squanders this chance. It would enable some of the most constitutionally questionable surveillance activities now exposed to the public eye. The Senate should be reining in these programs, not giving them a stamp of approval.
As members of the Intelligence Committee, we strongly disagree with this approach. We had already proposed our own, bipartisan surveillance reform legislation, the Intelligence Oversight and Surveillance Reform Act, which we have sponsored with a number of other senators. Our bill would prohibit the government from conducting warrantless “backdoor searches” of Americans’ communications — including emails, text messages and Internet use — under Section 702 of the Foreign Intelligence Surveillance Act. It would also create a “constitutional advocate” to present an opposing view when the F.I.S.C. is considering major questions of law or constitutional interpretation.
Rather than adopt our legislation, the Intelligence Committee chose to codify excessively broad domestic surveillance authorities. So we offered amendments: One would end the bulk collection of Americans’ records, but still allow intelligence agencies to obtain information they legitimately needed for national security purposes by getting the approval of a judge, which could even be done after the fact in emergency situations. Another of our amendments sought to prevent the N.S.A. from collecting Americans’ cellphone location information in bulk — a capability that potentially turns the cellphone of every man, woman and child in America into a tracking device.
Each of these proposals represents real and meaningful reform, which we believe would have fulfilled the purpose of protecting our security and liberty. Each was rejected by the committee, in some cases by a single vote.
But we will continue to engage with our colleagues and seek to advance the reforms that the American people want and deserve. As part of this effort, we will push to hold a comprehensive reform debate on the Senate floor.
There is no question that our nation’s intelligence professionals are dedicated, patriotic men and women who make real sacrifices to help keep our country safe and free. We believe that they should be able to do their jobs secure in the knowledge that their agencies have the confidence of the American people.
But this trust has been undermined by the N.S.A.’s domestic surveillance programs, as well as by senior officials’ misleading statements about surveillance. Only by ending the dragnet collection of ordinary Americans’ private information can this trust be rebuilt.
Congress needs to preserve the agencies’ ability to collect information that is actually necessary to guard against threats to our security. But it also needs to preserve the right of citizens to be free from unwarranted interference in their lives, which the framers understood was vital to American liberties.
Ron Wyden of Oregon, Mark Udall of Colorado and Martin Heinrich of New Mexico, all Democrats, are United States Senators.