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Editorial: Breached Fortress

NSA Practices Come Under Attack

It is astonishing just how quickly what appears to be an impregnable fortress can collapse, not from external attack but from its own structural flaws. The former Soviet Union comes to mind as one example, and a series of events earlier this month suggests that the vast domestic surveillance apparatus erected by the National Security Agency after the terrorist attacks of 9/11 might be another.

Several of the agency’s top-secret spying programs have been disclosed since last June by a disaffected former contractor at the agency, Edward J. Snowden, who walked off with a trove of documents detailing their existence.

The first to reach the light of day was the agency’s systematic collection and storing of phone logs containing so-called “metadata” about all Americans’ telephone calls. This information includes the phone numbers, the time and duration, and perhaps the physical location of each call, although not the contents. A small group of agency officials have the power to authorize a search of an individual’s phone contacts.

On Dec. 16, U.S. District Judge Richard J. Leon ruled that the program most likely violates the Constitution, although he gave the government time to appeal. “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” Leon wrote. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment,” which prohibits unreasonable searches and seizures.

Surely it does, but Leon is the first judge to state the obvious and pronounce the program nearly “Orwellian.” One wonders why 16 other judges have deemed the program legal — most recently in a ruling issued yesterday by Judge William H. Pauley III of the U.S. District Court for the Southern District of New York. Perhaps it was because all of those judges except Pauley were serving on the also-secret Foreign Intelligence Surveillance Court. In any case, they failed to recognize that if the Fourth Amendment means anything, it means that government is not permitted to subject people’s activities to this kind of scrutiny without first obtaining a warrant based on probable cause.

The following day, leaders of some of the nation’s biggest tech firms warned President Obama that NSA spying programs are bad for their business, especially overseas, and could harm the economy. It’s likely that the president paid some attention, first because the tech sector is a vibrant component of the American economy and second because it contributed $7.8 million to his campaign during the most recent election cycle.

Finally, on Wednesday of the same week, a five-member outside panel of advisers presented a report to the president recommending 46 reforms to NSA programs, most notably to restructure the “metadata” program so that the records remain in the hands of telecommunications companies or a private consortium and a court order be required for analysts to search any individual’s records.

There’s no way to tell at present whether any of these blows dealt to the NSA will succeed in bringing its practices under control. But the fact that they landed at all is remarkable given that six months ago the NSA was so powerful and so secret that its initials were said to stand for “No Such Agency.”

Power and secrecy are dangerous to democracy, but also contain the seeds of their own destruction. When an agency that wields enormous power operates with little oversight and no transparency, the temptation to overreach is almost irresistible. When that temptation is not resisted and the resulting abuse finally comes to light, the backlash is all the sharper.

The irony here, of course, is that the NSA was vulnerable from the inside, where Snowden used his top-secret security clearance to compromise top-secret programs conducted by a super-secret agency. The agency greatly expanded the number of people with those high-level security clearances after 9/11 to encourage employees to more readily share the information that was being collected. Snowden’s job was to move documents from one part of the NSA network to another, where it would be easier to track who was reading and sharing them. In the process, he read and shared them — with the American people.