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BOB: This is On the Media, I’m Bob Garfield.
BROOKE: And I’m Brooke Gladstone. This week, a federal appeals court landed a stunning blow against a major NSA surveillance program, the one that hoovers up all the data on the phone numbers you call, and how long you stay on the line.. The court ruled that the provision in the Patriot Act that supposedly authorizes it, actually doesn’t. The wording of the act, specifically of Section 215, would have be broadened to make it legal. Senate Majority Leader Mitch McConnell and Senator John McCain, were ...displeased with the decision.
McConnell: "The expiring provisions of FISA are ideally suited for the terrorist threat we face in 2015.
McCain: It's pretty clear that 9/11 could have been prevented if we had known about some of the communications that went to those who committed this terrible atrocity
Now, section 215 is one of the acts three provisions of the act to expire on June 1st. And in the wake of Ed Snowden’s NSA revelations, the Congress will be watched, closely. Geoff Stone is a professor of law at the University of Chicago. Two years ago, he also served on the Review Group which advised the President on NSA surveillance. He’s say this week’s ruling focussed on a single word in the statute - relevance:
STONE: The court said basically, you can't sweep in all of the phone data in the United States because it might in some conceivable way turn out to be useful in the future in the investigation. The court said basically that's not what this statutory provision authorizes. It was basically authorizing a much more limited, much more sub poena-like type of activity. And that this goes wildly beyond what the word relevant has ever meant in American law.
BROOKE: Now, the ACLU had a constitutional argument that the judges didn't address in their decision. It claimed that the program violates our fourth amendment protection against warrantless search and seizure. The court ducked that. How come?
STONE: Well it's not really fair to say ducked it. I mean a court is supposed to decide cases on the narrowest ground available. And in this case, having found that the program violated the statute, there was no need to then go on and address the constitutional question because they had already decided that the program was invalid.
BROOKE: Okay well how about the government's argument that those phone numbers are owned by the phone companies, not by the public. So the public can't claim the right to keep them private.
STONE: Right, so on the fourth amendment issue, here's the dilemma. The court has said that individuals have fourth amendment rights when the government intrudes on their reasonable expectation to privacy. So the court actually held in the 1970s that when the government wanted to get information about an individual's phone records, they could get that information from the phone company without any fourth amendment issue because that person had voluntarily exposed the information to the phone company. And that's been the law for the past almost forty years now. The challenge that is raised here, is to what extent changes in technology should cause us to reexamine what were previously thought to be unreasonable expectations to privacy. So a good example of this historically is what the court did with the problem of wiretapping. In 1928 when the Supreme Court first considered whether wiretapping was a search under the fourth amendment, it said no. Because a search was defined historically as a physical intrusion into some physical space that you own or occupy. IT wasn't till 40 years later, until 1967 that the Supreme Court finally said because of the changes in technology, a wiretap was a search under the meaning of the fourth amendment even though it did not involve a physical intrusion into a physical place. And we're now at a similar point in which we have to step back and reevaluate concepts that may have made sense in the 1960s and 70s which in light of new technology really doesn't make sense any more. That issue eventually is going to be addressed by the supreme court, and it will be very interesting to see what it does.
BROOKE: Senate Majority leader Mitch McConnell and Senator John McCain have reacted to the judge's ruling by doubling down and saying that 9/11 could have been prevented with this kind of bulk collection program.
STONE: Well, the truth is that's an overstatement big time.
BROOKE: Didn't the president's review group on which you served find that the phone metadata program, i'm not talking about the other surveillance programs, but that the phone metadata program specifically was noteworthy for its lack of effectiveness.
STONE: We basically found that in the time that the program had existed, there was no clear evidence that the information gathered from it had been critical in thwarting any kind of terrorist attack.
BROOKE: So what do you think of President Obama's suggestion to change section 215 so that the government isn't holding those records, the phone companies are holding them more or less in perpetuity.
STONE: So this is basically the recommendation of the review group. What we concluded was that the primary danger of the program was that the primary danger of the program was that the government itself had in its possession billions of bits of information about American citizens which could reveal all sorts of private things, about whether someone is seeing a psychiatrist, whether someone is having an affair, what religion, what church they go to. For the government to have all of that information is a potential disaster. There had been a disaster, there are lots of safeguards in place, but the fact is you can always have another J Edgar Hoover, or some other leader who decides I'm going to circumvent those safeguards and find out about my political enemies. So the recommendation we made was that the government should not be allowed to collect or retain the data. If and when the government could demonstrate that it had reasonable and articulable suspicion that a particular phone number was being used by a terrorist, it could then get a 215 order that required that the phone companies which have the data anyway to reveal the connections that that phone number had to other persons but that the government itself would not have the information in its possession. And that's what the USA freedom act, the legislation that is now pending in Congress recommends.
BROOKE: And just to draw a line under what you said earlier, it's not because of abuses of the program that have taken place, but because it creates an architecture for terrible abuse in the wrong hands.
STONE: Correct. The fear is simply that the government is in possession of this extraordinarily huge amount of data and that we don't want the government to have even the temptation to dig into that data for the wrong reasons.
BROOKE: So do you have any idea of where this decision will take us, what happens next?
STONE: Congress is going to have to decide whether it wishes to authorize the telephone metadata program under section 215. That's up in the air. But my hope is that in the end, Congress will adopt the pending legislation. We will then have a law that is much more carefully drawn, and eliminates this program.
BROOKE: Geoff, thank you so much.
STONE: My pleasure, always!
BROOKE: Geoff Stone is a professor of law at the University of Chicago. Two years ago he also served on the president's review group which made recommendation to president Obama on NSA surveillance.