In releasing an opinion by a secret court approving the bulk collection of Americans' telephone records, the director of national intelligence may have thought he would bolster support for the breathtakingly broad program whose existence was revealed by former National Security Agency contractor Edward Snowden.
But Judge Claire Eagan's explanation of the legal justification for the program is unpersuasive, and her suggestion that members of Congress knew the details of the program when they reauthorized the Patriot Act makes a point she may not have intended: that Congress is more likely to approve legislation that intrudes on Americans' privacy if citizens are kept in the dark about how the law actually works.
Eagan, a U.S. district judge from Oklahoma, is one of 11 members of the Foreign Intelligence Surveillance Court. On Aug. 29, she issued an opinion upholding the collection by the NSA of telephone metadata — information about the source, destination and duration of telephone calls but not their contents.
Eagan made two points: that the program didn't violate the 4th Amendment's ban on unreasonable searches and seizures, and that it was a lawful application of the Patriot Act, approved by Congress after 9/11. Regrettably, her first conclusion is accurate. In 1979, the Supreme Court held that citizens don't have a reasonable expectation of privacy in information they provide to "third parties" such as a telephone company. We have argued that the court needs to revisit that question in the Internet era.
Much less defensible is the judge's assertion that the data collection is authorized by a section of the Patriot Act that allows the government to obtain business records "relevant to an authorized investigation" of espionage or terrorism. Eagan concludes that the phone records of virtually every American are "relevant" because the government needs a "broad collection" of data to discern calling patterns that could identify terrorists. That strained interpretation has been disavowed by Rep. F. James Sensenbrenner Jr. (R-Wis.), a principal author of the Patriot Act.
The judge's trump card is that Congress renewed the Patriot Act in 2011 by healthy margins. She notes that before the votes, documents and briefings were made available "to afford each member full knowledge of the scope of the [Patriot Act provision] and of the underlying legal interpretation " by the court. But, whether or not most members of Congress were aware of the program, their constituents were in the dark. After the public learned about the program, sentiment shifted on Capitol Hill and the House came within a handful of votes of curtailing it. Additional information — including the flawed reasoning of the court — will change even more minds about this violation of privacy.