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McManus: What Edward Snowden started

Edward Snowden should be proud.

Until this week, the National Security Agency could argue that its massive effort to collect every American's telephone records had been approved, at least tacitly, by all three branches of government.

The president was on board; the people running the program were his appointees. The House and Senate intelligence committees knew what was going on and chose not to stop it. And the Foreign Intelligence Surveillance Court, which reviews NSA activities in secret, hadn't objected.

But now, thanks to Snowden's renegade disclosures, all three branches have decided that the routine federal collection of metadata — records of who calls whom, and when, but not the content of the calls — needs another hard look.

Congress is debating several proposals to rein in the program, including a bill that would effectively end it. President Barack Obama is considering recommendations from his own advisers, including one to take the data away from the NSA and ask telephone companies to hold them instead. And, this week, a federal judge found that the program was probably unconstitutional — that it invaded citizens' privacy beyond what they had a right to expect.

"I cannot imagine a more indiscriminate and arbitrary invasion" of citizens' rights, District Judge Richard J. Leon wrote in a blistering opinion. "The author of our Constitution, James Madison . . . would be aghast."

Until Snowden's disclosures, Leon wouldn't have had a chance to weigh in on the matter. Earlier challenges were thrown out of court because civil libertarian plaintiffs couldn't prove that the NSA was collecting data about them. Snowden's leaks forced the government to acknowledge what it has been doing since 2001, and opened the way to a battle in the U.S. appeals court, followed almost certainly by one before the U.S. Supreme Court.

Yes, for the record, Snowden went about his whistle-blowing the wrong way; officials say the damage he's done to U.S. security is real. As he sits in chilly Moscow requesting asylum from one country after another, he can consider that question at leisure. But golly, has he been effective.

Whether Snowden, other civil libertarians - and now, Leon — will prevail in higher courts is a different matter. The NSA's action in collecting everyone's phone records, however "indiscriminate and arbitrary," could still turn out to be constitutional.

The core question in the jurisprudence on surveillance is whether the government's actions violate what the Supreme Court has called "a reasonable expectation of privacy." But what exactly does that mean? One leading scholar of the Fourth Amendment, Orin Kerr of George Washington University, calls the standard "notoriously murky." Kerr wrote this week that the metadata program might survive a Supreme Court test because the government doesn't look at everyone's telephone records — only at those that might yield foreign intelligence information.


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