The Spying on Americans Never Ended

[Commentary] The Guardian newspaper reported on a secret court order showing that a subsidiary of Verizon was required to turn over all of its customers' records for a three-month period. Members of Congress soon confirmed this was part of a larger collection program dating back seven years. The most tangible problem is the invasion of Americans' privacy.

The so-called metadata collected by the NSA includes information about our calls, such as the numbers we call, the numbers of those who call us, when the calls are made, and for how long. This information may seem relatively trivial at first blush. Yet, pieced together, these details can paint a detailed and sensitive picture of our private lives and our associations. Calls to a therapist's office, Alcoholics Anonymous, repeated late-night calls to a friend's wife—the existence of these calls can reveal as much in some instances as the calls' actual content. Another concern is legality. The program is taking place under Section 215 of the Patriot Act, which allows the government to obtain records and other "tangible things" only if they are relevant to an authorized foreign-intelligence or international-terrorism investigation. It is simply not possible that all of the phone records of every American are relevant to a specific authorized investigation. Such an interpretation of "relevance" (or of "investigation") would render Section 215's limitation utterly meaningless. There may be a constitutional concern, as well. Whether the program's usefulness would justify the incursion into Americans' privacy is a question of balancing competing policy priorities—a core question of public policy that is for the American people, not a handful of intelligence officials, to debate and decide. Why were we not given that opportunity?

A public debate on the government's surveillance authorities is long overdue. The silver lining to this week's revelations is that we may finally begin to have it.

[Goitein is co-director of the Liberty and National Security Program at the Brennan Center for Justice in New York]