Last night, the Guardian revealed that the National Security Agency obtained a secret order from a FISA court to harvest all Verizon customer metadata over a three-month period. (Our own Jordan Gonzalez has excellent analysis here.) Now the White House and several key senators are defending the order:
After reviewing the Guardian report, [Sen. Dianne] Feinstein said Thursday, “This is just metadata. There is no content involved. In other words, there is no content of communication.”
Her comments echoed those of a senior Obama administration official, who said Thursday morning that the order “does not allow the government to listen in on anyone’s telephone calls” but relates only to “metadata, such as a telephone number or the length of a call.”
See, it's all okay because it's "just" metadata. Behold this incredible quote from (Republican) Sen. Saxby Chambliss:
Chambliss (Ga.), the top Republican on the Intelligence Committee, said, “This is nothing particularly new.... Every member of the United States Senate has been advised of this.”
We've taken one, long, vertiginous plunge down the civil liberties rabbit hole if senators are now blithely justifying this sort of thing as normal. And to be fair, not all of them are. As the Guardian article notes, Sens. Ron Wyden and Mark Udall have ominously hinted for years that the Obama administration is engaged in extremely broad surveillance activity. And Sen. Rand Paul released a statement earlier today calling the NSA's activities "an astounding assault on the Constitution." Expect this issue to carve another few inches between the security hawk and Tea Party wings of the GOP.
We got to this point on two tracks. The first is technological: Given today's advancements in communications, it's relatively easy for the government to work with the telecoms to harvest data. The second, and more important is legal: As the Washington Post notes, under the Patriot Act, and in conjunction with FISA, this sort of data-harvesting is likely lawful. And the groundwork was already laid by the Bush administration, most famously when they asked AT&T to set up a secret room in 2003, which was used to siphon off and sift through Americans' online communications. That resulted in a bevy of lawsuits, but it set a precedent for future presidents.
Advocates for government spying will likely point to the FISA court as a check on executive power. But FISA courts have been something of a rubber stamp from the very beginning. Between 1979 and 2011, they rejected only 11 of more than 32,000 surveillance requests. As the New York Times pointed out, you're more likely to be struck by lightning than have a FISA request turned down.
The federal government needs to intercept terrorist communications and keep us safe. But it also needs to preserve a healthy balance between security and privacy. And lately, all the weight on that balance has been shifting in one direction.