by Jeffrey Rosen
January 17, 2014
President Barack Obama on Friday will announce his response to the NSA surveillance scandal. According to a New York Times report, Obama has decided to split the difference between advocates of privacy and security, allowing the government to continue to hold telephone metadata for now but calling on the attorney general, the intelligence community, and Congress to report back to him about how the program might continue without the government holding the metadata.
Obama’s openness to ending the government’s bulk collection of data is welcome. But unless he commits to ending it after the study is complete, he will continue to oversee a program that’s likely unconstitutional.
The president’s advisory commission took care to stress that its recommendations were based on policy considerations alone. But as Geoffrey Stone, a member of the advisory commission has argued, the same flaws that make the NSA’s bulk telephone metadata program a bad policy also make it an unreasonable search under the Fourth Amendment. The data can reveal a great deal of personal information, is susceptible to abuse without adequate safeguards, and can be queried by NSA agents without judicial oversight. As Stone notes, the constitutional question isn’t obvious—there are good arguments on both sides and two judges have come to the opposite conclusion. But Obama, at the very least, has an obligation to explain why he believes that bulk data collection by the government is or is not consistent with the Constitution. And if he believes the government’s mass data collection isn’t constitutional, he needs to end it regardless of what his study group reports.