NSA's Worst Program Is Finally Reined In

Can you hear me now?

Photographer: Christof Stache/AFP/Getty Images

It has long been clear that the National Security Agency's mass collection of U.S. phone records was intrusive, unpopular and ineffective at preventing terrorism. Now a court has found it illegal, too.

A federal appeals court in New York ruled unanimously Thursday that the program -- in which the NSA swooped up colossal amounts of metadata from Americans' phone calls without a warrant, then stored it all in a searchable database -- wasn't authorized under the Patriot Act, as the government had argued.

That argument depended on some inspired sophistry. The law allows federal agents to collect business records and other data deemed relevant to counterterrorism investigations. But the government's secret interpretation of that law -- secretly affirmed by a secretive court -- held that essentially all phone calls made by Americans could one day be relevant to such an investigation. Thus, everyone's phone data could be collected in bulk.

This was a tortured reading of the text unknown even to many members of Congress who ostensibly approved it. "Such an expansive concept of 'relevance’ is unprecedented and unwarranted,” the court's ruling says.

Legal rationale aside, this program was always an odd duck in the menagerie of NSA operations exposed by Edward Snowden -- most of which are governed by elaborate rules to protect Americans from snooping and many of which have proven crucial in protecting national security.

The phone-records program, by contrast, intentionally collected the data of U.S. citizens. It didn't differentiate between the guilty and the innocent. And two comprehensive reviews, several members of the Senate Intelligence Committee and a federal judge have all come to the conclusion that it was ineffective in achieving its stated goals.

A report last year from the Privacy and Civil Liberties Oversight Board put it unequivocally: "We have not identified a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation."

Even so, many members of Congress have insisted that the program is vital to national security and must be protected. As the court noted Thursday, however, they're free to legalize it the old-fashioned way: by unambiguously stating their intentions in a bill and putting it up for a vote. They may find that legalizing an intrusive surveillance program with little empirical justification is a tough sell to a public increasingly concerned about privacy, inured to alarmist rhetoric and scandalized by government espionage. Such is democracy.

This isn't the end of the line for the phone-snooping program. Congress must decide whether to renew parts of the law underlying it by the end of the month. Several proposals to overhaul it are circulating. And Thursday's ruling may be appealed. But the court affirmed an important principle: Laws conceived in secret, interpreted in secret, and subject only to secretive overview will almost always be abused. And they will almost never withstand public scrutiny. 

To contact the senior editor responsible for Bloomberg View’s editorials: David Shipley at davidshipley@bloomberg.net.