Why the NSA’s Metadata Program Won’t Change Anytime Soon

Of all the applause lines President Obama delivered in his speech Friday on NSA spying, none matched his promise to end the agency’s telephone metadata program “as it currently exists” under section 215 of the Patriot Act.

Unfortunately, however, the promise was at best misleading, and at worst entirely hollow. To understand why, it’s necessary to parse the fine print of the president’s address.

Far from questioning the constitutionality of the metadata program, Obama invoked national security (what else?) to endorse and maintain it. Not only did he claim that the program in general is necessary, but he suggested that if it had been in place before 9/11, it might have led the NSA to a call placed by one of the 9/11 hijackers, thereby — presumably — disrupting the deadly attacks on the World Trade Center and the Pentagon before they took place.

Not once did the president mention that U.S. District Judge Richard Leon, a Republican judicial appointee, had held in a blistering legal opinion written only last month that the program violated the Fourth Amendment, and that the Justice Department had failed to cite “a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature.” Similar findings about the program’s track record in thwarting terrorism were reached by Obama’s own blue ribbon commission on surveillance reform.

Fostering the appearance of change, the president proposed to remove the storage of collected metadata from the NSA’s computer system. Where the data would be held in the future — whether in the private sector, which thus far has balked at taking on the responsibility, in another government agency, or a private-public consortium on the model of Fannie Mae — Obama left up to Attorney General Eric Holder, who is to report back to the president on the available options by March 28. That, Obama said, is the date the metadata program comes up for “reauthorization.”

Both the alternatives that Holder likely will explore and the March 28 deadline are more illusory than real. As Jeffrey Rosen, who heads the National Constitution Center in Philadelphia, noted in a New York Times op-ed Sunday, transferring the storage of metadata to the private sector would be of little value because “Internet service providers and telecoms are constrained neither by the Constitution nor, in meaningful ways, by federal privacy statutes. And they are free to engage in just the kind of intrusive surveillance that Judge Leon insisted was an unreasonable search and seizure when conducted by the N.S.A.”

And as for the tough-sounding time limit Holder will face, March 28 is not, as some media outlets have reported, the date when Congress is slated to reauthorize the Patriot Act. In 2011, Congress and the president renewed the Patriot Act for another four years. The March 28 deadline is when the Foreign Intelligence Surveillance Court is scheduled to reauthorize the collection of metadata — something it routinely does every 90 days. Should Holder miss the deadline, the FISA Court no doubt will permit the metadata program to continue, as it has 36 times in the past.

Nor is there any real bite in Obama’s proposal to create a panel of advocates to represent privacy interests in what the president termed “significant” cases that come before the FISA Court. The judges of the FISA Court uniformly oppose the idea, and the president has yet to show any resolve to incur their disfavor. Unless the panel is funded to operate in a truly independent fashion, it will fall far short of providing an alternative, adversarial voice. Much the same can be said of Obama’s proposal to require the NSA, except in undefined emergencies, to seek FISA Court approval and to satisfy a “reasonable suspicion” legal test whenever the agency decides to “query,” or investigate, individual phone records that have been gathered under the metadata program. Presently, the NSA decides on its own when to conduct metadata queries, guided by the very same “reasonable suspicion” standard. The standard is also the legal basis of the “stop and frisk” operations conducted by New York City police officers. As critics of that program well know, the standard falls below the Fourth Amendment requirement of probable cause, and is both highly subjective and easily abused.

Whatever legal test is utilized by the FISA Court, there is no reason to believe that it will act as anything other than a rubber stamp for the NSA as it has so often in the past. In fiscal year 2012, in the area of electronic surveillance, the court approved 1,789 NSA applications and denied none.

If the president is really serious about safeguarding our constitutional rights, he needs to stop the fear mongering and tell us in as much detail as possible why we truly need a program that turns all of us into potential terror suspects. Either that or he needs to assure us that our collective safety will not, after all, be endangered by ending the metadata program once and for good. The chances of that happening, however, are slim to none.