Courts get it right: Privacy still matters
The threat of terrorism remains as real as the hatred of extremists who mean us harm. Yet Americans’ way of life — the life terrorists want to destroy — thrives on personal freedom and individual liberty. Our government can’t forget that or the terrorists will win without detonating another bomb.
Two court decisions reiterate the need to take a hard look at the balance between privacy and an over-intrusive government. One is about searches at the border; the other is about your phone calls.
Last week, the 2nd U.S. Circuit Court of Appeals said the National Security Agency’s massive collection of Americans’ phone data is illegal.
The court sidestepped the issue of whether the surveillance is unconstitutional, focusing instead on what’s permissible under Section 215 of the USA Patriot Act.
This court said sweeping up and storing phone data “exceeds the scope” of that law.
“The statutes to which the government points have never been interpreted to authorize anything approaching the breadth of the sweeping surveillance at issue here,” Judge Gerard Lynch wrote for a three-judge panel. “The sheer volume of information sought is staggering.”
The existence of the NSA’s phone-data collection was denied by the agency until Edward Snowden blew the whistle in 2013. The debate continues over whether he should be seen as a hero or traitor, but clearly the public deserved to know.
The data collection represents “an unprecedented contradiction of the privacy expectations of all Americans,” Lynch wrote. If such action is deemed necessary for the sake of national security, this “momentous decision” should “be preceded by substantial debate, and expressed in unmistakable language.”
That didn’t happen before the program began sweeping up information. It is happening now.
Congress is debating whether to reauthorize Section 215, which is set to expire June 1.
The debate needs to go beyond the usual political yoga. We need a frank discussion of what’s at stake.
The Appeals Court said government’s interpretation of current law would allow Uncle Sam “to collect and store in bulk any other existing metadata available anywhere in the private sector ... financial records, medical records, and electronic communications (including email and social media information) relating to all Americans.” Breathtaking. It is not certain whether intruding into the privacy expectations of all Americans will foil a future terrorist act. It is certain that NSA’s exertions under Section 215 erode the liberty that makes us who we are — and gives terrorists a victory by default.
Overreaching by the government also was called out in a second court decision last week.
U.S. District Court Judge Amy Berman Jackson suppressed evidence obtained when a businessman’s laptop was seized as he crossed the border into the United States.
As with efforts to thwart terrorists, the intent was good. The government wanted to prove its case that South Korean businessman Jae Shik Kim conspired to sell aircraft technology illegally to Iran.
The judge said Kim’s entry into the United States was used as an excuse to gain access to his computer.
Berman Jackson said it clearly went beyond a routine border inspection to take his computer 150 miles away and hold it indefinitely to review and copy the contents.
Appeals courts have reached different conclusions about the extent to which a person’s laptop can be searched as a result of crossing the border, so this issue may ultimately be decided at the Supreme Court.
The same is true of NSA’s surveillance, if Congress does not rein in the practice.
These two court decisions are a valuable reminder that personal liberty and individual freedom should never be dismissed as collateral damage.