Update:
President Obama has expressed “an openness” to the recommendation made by the President’s Review Group that private companies, not the government collect and store telephone meta-data and would provide a “pretty definitive statement” once he returns from his Hawaiian holiday break, according to The Hill.
Also according to The Hill, on Friday, the Office of the Director of National Intelligence said that the intelligence community “continues to be open to modifications to this program that would provide additional privacy and civil liberty protections while still maintaining its operational benefits.”
But also:
A secretive intelligence court on Friday approved the government’s request to continue collecting bulk information about domestic phone calls.
The Foreign Intelligence Surveillance Court agreed with the Obama administration that the controversial surveillance program is “lawful.”
It said it would allow the government to continue collecting metadata, or details about numbers people dial and the time and duration of their calls. The court does not allow the government to collect the content of the calls.
Read more here.
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Original Post:
While some of our readers have been debating the legality and constitutionality of recent NSA surveillance activities — in particular the NSA’s bulk telephony meta-data program — armed with considerable knowledge and experience in this area, I will be the first one to admit that, although I have some firm personal opinions, I am far from being qualified to discuss it in any real depth or, especially, objectivity.
I have therefore been following with immense interest the writings of a person who, I believe, has the qualifications to professionally examine and analyze these very complex issues, and also, I believe, the integrity and impartiality to not only render a fair assessment of the legality and constitutionality of the NSA actions, but to also make recommendations on how our nation should continue to protect our security while “simultaneously upholding the liberties that are at the very core of our national identity.”
This person, Geoffrey R. Stone, the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago and currently Chair of the Board of the American Constitution Society, is one of the five members of the President’s Review Group on Intelligence and Communications Technologies, charged with the responsibility of making recommendations about NSA surveillance and related issues.
The Group that last month delivered its 300 page Report (Liberty and Security in a Changing World) to the President.
While I have been quoting, sometimes paraphrasing and sometimes even including my own interpretations of Stone’s findings and recommendations here and here, Stone’s latest essay where he considers the constitutionality of the meta-data program, the “intricacies of the Fourth Amendment,” important Supreme and other Court cases and questions of precedent on wiretapping, “searches and seizures” (e.gt. Olmstead v. United States, Katz v. United States, United States v. Miller, Smith v. Maryland ) and the most recent disagreement between two federal judges, William H. Pauley III and Richard J. Leon, on this issue, I would be doing the readers a disservice by inserting myself between them and Professor Stone.
Please read it for yourself here and don’t miss Stone’s next installment where he, after saying that both federal judges had reasonable explanations for their competing conclusions (“There is no simple ‘right’ or ‘wrong’ answer), promises to examine an “even more fundamental question”: “What should the Fourth Amendment mean in this context?”
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