NSA's phone record sweep-up harder to defend: Our view

The longer the National Security Agency's controversial phone surveillance program goes on, the more concerns it seems to raise. The latest and loudest comes from federal District Judge Richard Leon, who ruled Monday that the program is most likely unconstitutional and called the technology an "almost Orwellian" intrusion of government into people's private lives.

Leon's opinion is particularly important because he is the first judge outside the super-secret Foreign Intelligence Surveillance Court to look broadly at the phone program and the only one to hear arguments from both sides.

It is an overdue balancing of justice's scales.

Since last June, when fugitive leaker Edward Snowden alerted the public to the NSA's covert surveillance, the only major legal opinions made public have come from a court that by design works in private and hears only from the government. No one represents the interests of the public.

Leon, who was appointed by President George W. Bush, stayed his ruling so the government can appeal, and there will be other rulings by other judges before the Supreme Court ultimately resolves the issue. But in ordering an end to the routine collection of phone records from virtually everyone in the country, Leon was both authoritative and blistering.

He knocked down two pillars on which intelligence officials have relied to justify their actions:

The secret court authorized the "metadata" collection under a 1979 Supreme Court ruling that now seems oddly outdated. The ruling, in a case from the pre-cellphone era, involved a single request by police to collect phone data about a robbery suspect under investigation for harassing a victim. Leon, quite appropriately, found that to be an inadequate foundation for allowing the government to sweep up phone records from everyone, update the records daily and keep them for five years — particularly when smartphone data can reveal so much more about someone than any phone record could 34 years ago.

The government has often asserted that the phone records, and a less intrusive e-mail program targeting foreign suspects, have helped disrupt "potential terrorist events over 50 times since 9/11." Here the judge was blunt. The government, he wrote, failed to "cite a single instance in which" the program "stopped an imminent attack" or even "aided the government in achieving any objective that was time sensitive."

On Tuesday, pressure to rein in NSA surveillance continued to build. At a private White House meeting, executives from some of the nation's largest technology companies urged President Obama to "move aggressively" to overhaul the way the U.S. government conducts surveillance.

In a surprisingly blunt public letter, eight of the CEOs said surveillance is undermining constitutional rights and freedoms. They offered an array of worthy ideas for limiting surveillance, ending bulk data collection of Internet communications and assuring that courts hear from both the government and the public.

A presidential task force reviewing surveillance is also about to weigh in. It is expected to propose new restraints and transparency, but recommend that metadata collection continue. No doubt, the data is convenient for the government to have. But the NSA has yet to prove that it's necessary or effective, and it must eventually do both to justify such a massive intrusion in a nation built on protecting every citizen's rights.

Leon's ruling doesn't vindicate Snowden. That's a separate issue. But it does provide further evidence that the phone surveillance program he exposed stretches the Constitution's limits. It needs to be tightly controlled, if not eliminated outright.

USA TODAY's editorial opinions are decided by its Editorial Board, separate from the news staff. Most editorials are coupled with an opposing view — a unique USA TODAY feature.



