Editorial: State of Surveillance; Government Snooping Is Widespread

For the past couple of years, two U.S. senators — Mark Udall of Colorado and Ron Wyden of Oregon — have been hinting darkly that the Obama administration was engaged in broad secret surveillance of Americans in the name of national security. In a letter last year to Attorney General Eric H. Holder Jr., for example, they asserted that the government was interpreting its surveillance powers under the Patriot Act so broadly that Americans would be stunned if they knew the details. Which, of course, they didn’t. But given that Udall and Wyden are both members of the Senate Intelligence Committee and are both Democrats, one could easily infer two things: that they probably knew what they were talking about and that their cryptic warnings were not partisan in nature.

On Wednesday, The Guardian, an English newspaper, provided confirmation of what Udall and Wyden had been hinting at. The newspaper reported that under an order issued by the secret Foreign Intelligence Surveillance Court in April, a subsidiary of Verizon Communications has been required to turn over to the National Security Agency “on an ongoing daily basis” all call logs between the United States and abroad or “wholly within the United States, including local telephone calls.”

The Obama administration was quick to point out that the order, a copy of which was obtained by The Guardian, pertains only to so-called metadata and does not cover the actual contents of conversations. That is cold comfort. According to The Guardian, the information collected does include the numbers of the parties involved, the time and duration of the call, any unique identifiers and possibly location data as well. In aggregate, this is enough to provide a pretty accurate picture of one’s whereabouts and network of friends and associates — the very stuff of private life.

Soon after, The Washington Post disclosed that the federal government has also been secretly collecting information on foreigners overseas for the past six years from major U.S. Internet companies, including Google, Facebook and Apple.

The dimensions of the telephone program are not entirely clear at this point, because it’s unknown whether the order, which expires July 19, is just one of an ongoing series and whether other telecommunications carriers are under similar orders. It is reasonable to assume so. The top Democrat and the top Republican on the Senate Intelligence Committee on Thursday characterized the order as simply a routine reauthorization of part of a broader program that Congress has known about and approved for seven years.

How does this surveillance program differ from the one initiated by the Bush administration after 9/11? It is different in one important respect: Obama’s version has the imprimatur of the FISA court, set up under the Foreign Intelligence Surveillance Act of 1978, which regulates domestic surveillance for national security purposes, and apparently has been carried out with congressional oversight and approval.

But there’s also a legitimate question here. That is whether the interpretation of a section of the Patriot Act on which the program relies simply has deemed lawful what was previously unlawful. That section of the law, which was enacted after 9/11, made it easier for authorities to obtain some categories of records so long as they were categorized as merely “relevant” to a national security investigation. Relevance, to say the least, is an elastic concept. As Udall and Wyden wrote Holder last year: “As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows. This is a problem, because it is impossible to have an informed public debate about what the law should say when the public doesn’t know what its government thinks the law says.”

Now we have a pretty good idea of what the White House, the FISA court and Congress think the law means. It does not comport with our notion of the Fourth Amendment requirement that searches can be conducted only where well-grounded suspicion of wrongdoing by particular individuals exists. Indiscriminately sweeping up large amounts of personal information about Americans who are suspected of nothing is not consistent with the nation’s traditional conception of civil liberties. A White House spokesman says that the president welcomes a discussion of the trade-offs between security and civil liberties. Let that debate begin immediately.