Talk to any official from the National Security Agency and a few things are immediately clear. The NSA is frustrated that it has had to devote months dealing with the fallout from Edward Snowden’s leaks, especially since they believe they’ve done nothing illegal. Agency officials are also upset that the Snowden affair is being compared to past intelligence scandals in which individual citizens were deliberately targeted for their political beliefs. They stress that their collection is limited to general information about phone calls, not the substance of phone conversations, and that analysts must go through several procedural hoops in order to see it. Moreover, they believe this metadata is critical to counter-terrorism, citing dozens of cases in which it helped foil plots in advance. Some high-level officials even claim that the intelligence community could have thwarted the
For all these reasons, they are bewildered by the ferocious criticism they have faced for many months. Why would anyone oppose a program that helps prevent terrorism while protecting civil liberties?
Critics of the NSA, however, are just as frustrated. They accuse the agency of paying lip service to the Constitution while routinely collecting vast amounts of information on law-abiding citizens. Critics cite a federal judge’s secret ruling in 2011 that the agency was not doing enough to stop analysts from querying data on Americans, and that it was misleading Congress about the extent of its activities. They also point to a recent district court judge’s opinion that the metadata program almost surely violated the Fourth Amendment. The program, he argued, was “almost Orwellian.” Nor do critics believe it has been important for national security. The White House claimed that it was critical in more than fifty counterterrorism cases, but independent analyses found that this number was wildly exaggerated, and that in almost every case other intelligence and law enforcement methods were much more important.
Thus the critics are just as baffled as supporters. Why do the NSA and the administration cling to a program that poses a serious threat to privacy, especially given that it doesn’t seem to be very effective?
To some extent both sides are suspicious of the others’ intentions, and their mutual mistrust has been fueled by hyperbolic media coverage. But the real reason the two sides are at loggerheads is that they are having a false debate. The question about privacy, for instance, is not really about whether the NSA has violated Americans’ civil liberties through the collection of metadata, but whether it can be trusted to hold this data without misusing it in the future. Critics have posed reasonable questions about the problem of protecting civil liberties at a time of rapid technological change in commercial communications as well as the intelligence community’s ability to intercept them. But given the intensity their criticisms—references to Orwell are now commonplace—NSA officials feel as if they’re already being convicted for some future sin.
The argument about the utility of metadata is similarly misleading. Harvesting metadata can help analysts map networks that operate across borders in order to assist other intelligence and law enforcement efforts, but it is not a silver bullet for counterterrorism. Metadata cannot stop terrorist attacks on its own, and holding it to that standard is unfair. The administration did itself no favors by overselling the value of metadata in such cases, to be sure, but this does not mean that it has been useless. It’s also important to note that metadata is useful for more than just counterterrorism. Efforts to break up transnational proliferation networks, along with counterintelligence work to uncover industrial espionage in the United States, stand to benefit greatly from metadata analysis. So painting the future of the NSA as a contest between civil liberties and counterterrorism is both misleading and incomplete.
President Obama’s speech last week moved past this phony debate. The president emphasized that the NSA had not acted illegally or abused its authority, but he responded to civil libertarians’ legitimate concern that extraordinary new technologies might tempt intelligence agencies to cross the line. Thus, rather than radically altering how the NSA does business, he sought to encourage a discussion about how to sustain its current intelligence efforts while building new protections to guard against future abuse.
Obama also stressed that the metadata program serves a variety of purposes. A new policy directive released the day of the speech implied that the intelligence community uses metadata for much more than counterterrorism. Other purposes include counterespionage, counterproliferation, cybersecurity, U.S. and allied force protection, and efforts to combat transnational crime. As Austin Long and I noted
Some of the new guidelines are problematic, however, including the push to have telecommunications firms store metadata while allowing NSA access on request. This idea faces substantial legal and practical hurdles, and the president himself admitted that the administration is not yet sure how it would work. The cost and complexity of such an arrangement explains why both intelligence and industry leaders are opposed to it. Civil libertarians are dubious of the whole idea: they want the metadata program shut down entirely, and are concerned that bringing more contractors into the process will increase the danger of misuse. The fact that all of these competing groups are united in their opposition to this proposal suggests that it’s a bad idea.
Other guidelines are sure to face opposition, not least because the president left considerable wiggle room in almost all of them. For instance, while he indicated that the United States would not listen in on the conversations of our “close friends and allies” unless national security was on the line, he did not say what countries were on the list or what kind of issue would qualify as a compelling national-security interest. The continuing uncertainty about the details of implementation on this and other issues will certainly provoke debate. But because the president moved beyond the false choice between civil liberties and counterterrorism, there is reason to believe the debate will be much more productive. For that he deserves credit from NSA supporters and critics alike.
Joshua Rovner is the John Goodwin Tower Distinguished Chair in International Politics and National Security at Sothern Methodist University.