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Can Congress Protect Digital Privacy from NSA Spying?

[Editor's Note: The House Judiciary Committee hearing can be viewed live on C-SPAN.org]

Today, the House Judiciary Committee will conduct a hearing on recommendations to reform foreign intelligence gathering.  The proposed reforms on the table include those suggested by President Obama himself, by his Review Group, by the Privacy and Civil Liberties Oversight Board, and by dozens of bills that have been introduced to rein in the NSA.  I will be testifying, and my written testimony is available here.

In brief, I argue in my testimony that the NSA spying revealed by Edward Snowden demonstrates that the concerns that many scholars have been raising for years about the threat that new technology poses to privacy are no longer conjectural or speculative. They are here.  As the President’s Review Group, the Privacy Board, and the President himself all acknowledge, advances in computers have made it possible to gather a detailed portrait of anyone – or indeed everyone – by accessing and amassing the various digital traces that everyone leaves when living in the modern world.  Yet under the administration’s interpretation of Section 215 of the Patriot Act and the Fourth Amendment, there are no limits on its ability to collect all those records – not just phone records, but records of our internet browsing, email, bank, credit card, and cell phone location activities.  Under the administration’s view of Section 215, all of these records could be deemed “relevant” to a terrorism investigation, without any showing that any specific record has any connection to terrorism, simply because the NSA might find it useful to search them for terrorist ties in the future.   And under the administration’s view of the Fourth Amendment, there are no constitutional restrictions on its gathering this data because we have all forfeited our privacy by sharing these digital traces with the various businesses that provide us with these services.

I also argue that, as Justice Samuel Alito noted in United States v. Jones, Congress is particularly well situated to provide privacy protection from advancing technology.  It has frequently done so in the past, responding to Court decisions declining to protect bank, credit card, and pen register information by enacting statutes that regulate and limit the government’s access to such records as a statutory matter.  So, too, Congress has protected video rental records, and imposed special safeguards on subpoenas directed to the press and to innocent third parties, where the Supreme Court had not or would not recognize Fourth Amendment protection.  A Congressional response is particularly warranted here, because the administration has interpreted Section 215 in a strained manner, contrary to its plain meaning and the intent of those who enacted it, to give the government free access to the business records of everyone, without any showing of any particular record’s nexus to terrorist activity.

Finally, I maintain that the USA Freedom Act, introduced by Senator Pat Leahy and Representative Jim Sensenbrenner, is a fitting response to the revelations we have seen.  It would end dragnet collection of business records, but would permit the government to collect business records that have a nexus to a foreign agent, a terrorist, or someone known to or associated with a foreign agent or a terrorist.  And it would bring much-needed transparency and accountability to an area that very much needs it.  As the reactions of all three branches before and after the Snowden leaks demonstrate, it is not enough to establish institutional checks and balances without public scrutiny.  As long as the NSA’s programs remained secret, all three branches tolerated them without objection.  Now that the public has been brought into the conversation, all three branches have raised serious concerns about what the NSA has been doing.  If privacy is to be preserved, Congress must act, and it must not only constrain the NSA, but ensure that the public remains informed of the scope of NSA surveillance carried out in our name.

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About the Author

is a professor at Georgetown University Law Center. Follow him on twitter @DavidColeGtown