Skip to main content

The best week for privacy in a long time

By Catherine Crump
December 21, 2013 -- Updated 1554 GMT (2354 HKT)
STORY HIGHLIGHTS
  • Catherine Crump: Three major developments this week on the NSA surveillance issue
  • A judge questioned constitutionality of mass surveillance program
  • Report by NSA review panel recommended sweeping changes
  • President signaled willingness to seriously consider the panel's proposals, Crump says

Editor's note: Catherine Crump is a staff attorney for the American Civil Liberties Union's Speech, Privacy & Technology Project

(CNN) -- When President Barack Obama responded to this summer's torrent of disclosures about the National Security Agency by commissioning a review board, some wondered whether waiting for the committee to report its findings would involve a lot of delay and not much in the way of progress.

But Wednesday the panel issued a blockbuster report urging big changes in how the NSA does business. The recommendations are not perfect, but civil libertarians should embrace many of them, and we are glad that on Friday Obama said that they are being seriously considered. There is no question that all of us will be substantially better off if they are followed.

Consider what the report has to say about the bulk collection of Americans' phone records. Even among the troubling programs disclosed this summer, this one stood out because of the sheer number of innocent people whose personal information was swept up and its deliberate targeting of Americans within the United States. Also striking was the government's failure to offer any credible evidence that it has made us safer -- even if you are willing to trade liberty for security, you shouldn't be willing to trade it away for nothing.

Catherine Crump
Catherine Crump

More than that, the call records program squarely raises one of the most fundamental questions about surveillance in the era of big data: Should we "collect it all" in case some of it is useful later? The review board comes very close to rejecting this philosophy of surveillance -- closer than it at first appears:

"We recommend that, as a general rule, and without senior policy review, the government should not be permitted to collect and store all mass, undigested, nonpublic personal information about individuals to enable future queries and data-mining for foreign intelligence purposes. Any program involving government collection or storage of such data must be narrowly tailored to serve an important governmental interest."

This is a curious statement. On the one hand, the review board does not recommend a complete ban on government mass surveillance programs. But on the other, it sets such a high bar for them -- collection and storage must be "narrowly tailored to serve an important governmental interest" -- it is difficult to conceive of a program that would pass muster. How can a program of mass surveillance be narrowly tailored?

Moreover, lawyers will recognize that this language has been borrowed directly from the First Amendment's "strict scrutiny" standard, which famed constitutional scholar Gerald Gunther once described as "strict in theory and fatal in fact." In other words, while it is theoretically possible to meet this high bar, in practice few laws manage it.

Report calls for changes at NSA
NSA scandal puts Obama on hot seat

On the bulk telephone records program specifically, the panel said:

"We recommend that legislation should be enacted that terminates the storage of bulk telephone meta-data by the government under Section 215, and transitions as soon as reasonably possible to a system in which such meta-data is held instead either by private providers or by a private third party."

This recommendation does not go far enough, but it is a good start.

First, the review board acknowledges the two key civil liberties problems with the bulk collection of telephone records: "the record of every telephone call an individual makes or receives over the course of several years can reveal an enormous amount about that individual's private life," and "knowing that the government has ready access to one's phone call records can seriously chill 'associational and expressive freedoms.'" (The American Civil Liberties Union has filed a lawsuit arguing the program violates the constitution for these exact reasons.)

Second, the review board suggests that the government not hold the records, instead favoring a voluntary agreement that carriers will retain the records for some time (a solution the carriers have already opposed). On the one hand, this is a disappointing half-measure because the privacy and speech intrusions the review board identifies aren't actually eliminated by shifting custody of the records from the government to the carriers. The true solution would be for the carriers to retain records only as long as necessary for billing and network maintenance purposes.

On the other hand, at least the panel is saying clearly that current surveillance practices are in need of major, structural changes. If the review board reframes the debate such that government-maintained call records are out of bounds, that is a helpful contribution.

Friday, the president's expressed willingness to consider ending the NSA's collection of phone records, saying, "The question we're going to have to ask is, can we accomplish the same goals that this program is intended to accomplish in ways that give the public more confidence that in fact the NSA is doing what it's supposed to be doing?"

With this comment and the panel's report coming on the heels of Monday's remarkable federal court ruling that the bulk collection of telephone records is likely unconstitutional, this has been the best week in a long time for Americans' privacy rights.

Follow us @CNNOpinion on Twitter.

Join us at Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of Catherine Crump.

ADVERTISEMENT
Part of complete coverage on
December 20, 2014 -- Updated 0242 GMT (1042 HKT)
Conservatives know easing the trade embargo with Cuba is good for America. They should just admit it, says Fareed Zakaria.
December 20, 2014 -- Updated 0112 GMT (0912 HKT)
We're a world away from Pakistan in geography, but not in sentiment, writes Donna Brazile.
December 19, 2014 -- Updated 1709 GMT (0109 HKT)
How about a world where we have murderers but no murders? The police still chase down criminals who commit murder, we have trials and justice is handed out...but no one dies.
December 18, 2014 -- Updated 2345 GMT (0745 HKT)
The U.S. must respond to North Korea's alleged hacking of Sony, says Christian Whiton. Failing to do so will only embolden it.
December 19, 2014 -- Updated 2134 GMT (0534 HKT)
President Obama has been flexing his executive muscles lately despite Democrat's losses, writes Gloria Borger
December 18, 2014 -- Updated 1951 GMT (0351 HKT)
Jeff Yang says the film industry's surrender will have lasting implications.
December 18, 2014 -- Updated 2113 GMT (0513 HKT)
Newt Gingrich: No one should underestimate the historic importance of the collapse of American defenses in the Sony Pictures attack.
December 10, 2014 -- Updated 1255 GMT (2055 HKT)
Dean Obeidallah asks how the genuine Stephen Colbert will do, compared to "Stephen Colbert"
December 18, 2014 -- Updated 1734 GMT (0134 HKT)
Some GOP politicians want drug tests for welfare recipients; Eric Liu says bailed-out execs should get equal treatment
December 18, 2014 -- Updated 1342 GMT (2142 HKT)
Louis Perez: Obama introduced a long-absent element of lucidity into U.S. policy on Cuba.
December 16, 2014 -- Updated 1740 GMT (0140 HKT)
The slaughter of more than 130 children by the Pakistani Taliban may prove as pivotal to Pakistan's security policy as the 9/11 attacks were for the U.S., says Peter Bergen.
December 17, 2014 -- Updated 1600 GMT (0000 HKT)
The Internet is an online extension of our own neighborhoods. It's time for us to take their protection just as seriously, says Arun Vishwanath.
December 16, 2014 -- Updated 2154 GMT (0554 HKT)
Gayle Lemmon says we must speak out for the right of children to education -- and peace
December 17, 2014 -- Updated 1023 GMT (1823 HKT)
Russia's economic woes just seem to be getting worse. How will President Vladimir Putin respond? Frida Ghitis gives her take.
December 17, 2014 -- Updated 0639 GMT (1439 HKT)
Australia has generally seen itself as detached from the threat of terrorism. The hostage incident this week may change that, writes Max Barry.
December 12, 2014 -- Updated 2020 GMT (0420 HKT)
Thomas Maier says the trove of letters the Kennedy family has tried to guard from public view gives insight into the Kennedy legacy and the history of era.
December 15, 2014 -- Updated 1456 GMT (2256 HKT)
Will Congress reform the CIA? It's probably best not to expect much from Washington. This is not the 1970s, and the chances for substantive reform are not good.
December 15, 2014 -- Updated 2101 GMT (0501 HKT)
From superstorms to droughts, not a week goes by without a major disruption somewhere in the U.S. But with the right planning, natural disasters don't have to be devastating.
December 15, 2014 -- Updated 1453 GMT (2253 HKT)
Would you rather be sexy or smart? Carol Costello says she hates this dumb question.
December 14, 2014 -- Updated 2253 GMT (0653 HKT)
A story about Pope Francis allegedly saying animals can go to heaven went viral late last week. The problem is that it wasn't true. Heidi Schlumpf looks at the discussion.
December 14, 2014 -- Updated 1550 GMT (2350 HKT)
Democratic leaders should wake up to the reality that the party's path to electoral power runs through the streets, where part of the party's base has been marching for months, says Errol Louis
December 13, 2014 -- Updated 2123 GMT (0523 HKT)
David Gergen: John Brennan deserves a national salute for his efforts to put the report about the CIA in perspective
December 12, 2014 -- Updated 1426 GMT (2226 HKT)
Anwar Sanders says that in some ways, cops and protesters are on the same side
December 11, 2014 -- Updated 1439 GMT (2239 HKT)
A view by Samir Naji, a Yemeni who was accused of serving in Osama bin Laden's security detail and imprisoned for nearly 13 years without charge in Guantanamo Bay
December 14, 2014 -- Updated 1738 GMT (0138 HKT)
S.E. Cupp asks: How much reality do you really want in your escapist TV fare?
ADVERTISEMENT