Phone Records and the NSA: Legal and Keeping America Safe

A couple weeks ago, Edward Snowden exposed a NSA counterterrorism program that collects the phone records of millions of U.S. citizens. As Mr. Snowden continues to leak sensitive information, it is worth thinking about the value of these programs that he believes to be so immoral and illegal.

In the U.S., counterterrorism operations rely on tools such as the NSA surveillance program and are overseen by Congress, the executive branch, and the courts to prevent gross misconduct and overreach. Before Congress and the American public decide to throw the baby out with the bathwater, they must understand that these programs keep us safe and allow the U.S. to adapt to the ever-changing, and very real, terrorist threat.

Over the past week, Snowden has inundated the world with details about the NSA collection of telephone records from companies such as Verizon. However, according to a FISA court order, Verizon was only ordered to hand over “metadata” of the calls it processed. Metadata refers to basic information, including telephone number, location, and duration of the call, and the court order does not authorize the government to access the content of such conversations.

There is a growing body of legal precedent for the NSA program. In 1976 the Supreme Court upheld “the third party doctrine,” which states that anyone who voluntarily provides information to a third party, such as a telephone service provider, cannot object if it is later turned over to the government. What’s more, in 1979, the Supreme Court held in Smith v. Maryland that the government did not need a warrant to obtain phone record information as it did for the content of such communications. The information was not constitutionally protected because there was no true expectation of privacy. As a result, metadata collection is not protected under the 4th Amendment and is perfectly legal.

U.S. law enforcement and Intelligence agencies depend on tools and methods, such as the leaked NSA program, to combat homegrown radicalization and to fight the ongoing threat from terrorist cells such as the Al-Qaeda in the Arabian Peninsula in Yemen.

Moreover, NSA Director General Keith Alexander testified to Congress that these surveillance programs have helped foil dozens of terrorist attacks. These include, he stated, an attempted suicide plot against the New York City subway system by Najibullah Zazi, who pleaded guilty. Since 9/11, the U.S. has thwarted over 50 terrorist plots against America’s homeland. In addition to continued reliance on counterterrorism devices such as the Patriot Act and the NSA surveillance programs, Congress must take action to plug the remaining gaps in our counterterrorism system. For instance, there should be increased visa coordination to prevent known terrorists from boarding airplanes and travelling to the U.S. Additionally, Congress should foster greater cooperation among local, state, and federal agencies to streamline their information-sharing capabilities.

The current debate raging over Snowden’s leaking of the secret NSA surveillance program is no doubt a healthy exercise for a thriving democracy. The scope of the metadata collection and how the government uses it should come under close scrutiny. However, Congress and the American people should understand that these programs—which are under judicial, executive, and legislative oversight—are vital tools for law enforcement and intelligence officials in countering the ongoing threat of terrorism.