Stop the NSA's Intrusions

By Mark Udal and Ron Wyden, The Washington Post

27 July 13

Mark Udall and Ron Wyden, both Democrats, represent Colorado and Oregon, respectively, in the Senate.

resident Obama recently welcomed a public debate about how to protect both national security and privacy rights in the context of the National Security Agency's domestic surveillance activities. Congress should not squander this opportunity to have an open, transparent discussion about the limits of executive power and the surveillance of Americans. We believe that, when presented with all the facts, most Americans would agree with us that the White House should end the bulk collection of Americans' phone records and instead obtain this information directly from phone companies, using regular court orders based on individual suspicion.

We have had concerns about domestic surveillance authorities for several years. Through our oversight work on the Senate intelligence committee, we have become convinced that the government needs to scale back overly intrusive surveillance activities to better protect Americans' constitutional privacy rights and that this can be done while protecting U.S. national security. We have not been able to fully engage the public on these issues because the executive branch insisted on keeping its interpretation of the law secret. Although we would have preferred that this discussion had been sparked by a more transparent executive branch, rather than by unauthorized leaks, we welcome an open debate about the federal government's dragnet collection of Americans' phone records under Section 215 of the USA Patriot Act.

Our view of this program is shaped by our experience with the NSA's bulk e-mail records collection program. Concerned about this program's impact on Americans' civil liberties and privacy rights, we spent a significant portion of 2011 pressing intelligence officials to provide evidence of its usefulness. They were not able to do so, and it was shut down that year. This experience demonstrated to us that intelligence agencies' assessments of the effectiveness of particular collection programs are not always accurate, and it led us to be skeptical of claims about the value of collecting bulk phone records.

The federal government's collection of phone metadata under the Patriot Act sucks up records on millions of law-abiding Americans daily. We believe that large-scale collection of personal information by the government seriously infringes on Americans' privacy. The details of whom Americans call, when they call and where they call from is private information. In our opinion, the government's ongoing, overly broad collection is not authorized under a straightforward interpretation of the Patriot Act or any other law.

The White House ought to end this dragnet and sharpen its focus on the terrorists and spies who truly threaten our nation's security. For our part, Congress should pass the legislation that we have introduced that would stop the bulk phone records collection program and ensure that the executive branch does not have the authority to again intrude so far upon Americans' constitutional rights. While still allowing law enforcement and intelligence agencies to obtain a wide range of records, our bill, which is supported by members of both parties, would require the government to demonstrate that any private records obtained for intelligence purposes are in some way connected to terrorism or clandestine intelligence activities - an explicit requirement that does not exist in the law today.

Terrorism is a serious threat to our country, our economy and to American lives. Our government needs appropriate surveillance and anti-terrorism tools to combat serious threats to our nation. But it is incumbent on the White House and Congress to ensure that those tools protect Americans' privacy rights while also keeping Americans safe. The Patriot Act's bulk phone records collection program does not achieve these goals and, in our view, the NSA has not demonstrated that it is necessary for innocent Americans to give up their privacy when it comes to their phone records.

In recent weeks, intelligence officials have made new assertions about the value of the declassified NSA surveillance programs. In doing so, they have conflated two programs - the collection of the content of communications under Section 702 of the Foreign Intelligence Surveillance Act, and the bulk collection of Americans' phone records under Section 215 of the Patriot Act. The suggestion that "these programs" have disrupted "dozens of potential terrorist plots" is misleading when it hasn't been demonstrated that the bulk phone records collection program provides a unique value.

It may be more convenient for the NSA to collect phone records in bulk rather than asking phone companies to search for specific numbers, but convenience alone cannot justify the collection of millions of Americans' personal information, especially when the information the government actually needs can be obtained by less intrusive methods. A few hundred court orders per year would not overwhelm the Foreign Intelligence Surveillance Court, and emergency authorizations could be used in urgent circumstances.

We urge the administration to end bulk collection of Americans' phone records. We will push to pass our legislation, which would effectively do the same - and thereby focus this country's counterterrorism and espionage efforts on the real threats to our national security.