As the President gets ready to unveil his proposed reforms to the much criticized NSA surveillance programs, Professor Geoffrey R. Stone, one of the five members of the President’s Review Group on Intelligence and Communications Technologies, has published his last and probably most significant essay on the constitutionality of the bulk telephony meta-data program. More specifically, whether the program constitutes a “search,” and if so whether it is an “unreasonable” search — which is something that the Fourth Amendment forbids.
In his previous essay, Stone concluded, “the NSA’s bulk telephony metadata program is a ‘search’ within the meaning of the Fourth Amendment. But because the Fourth Amendment prohibits only unreasonable searches, the next question is whether the program is ‘unreasonable.’”
As Stone himself says, “This turns out to be a rather complicated question,” but he does a good job of unraveling the issue and providing a reasonable answer. “Reasonable” because, at least to this lay person, it appears to be well thought out, but also because in his answer Stone — and the Group in their report to the President — outline ways for the government “to correct the deficiencies in the program in a manner that both preserves its legitimate value and substantially mitigates the risks to privacy that it currently poses.”
The 300-page report to the President makes 46 recommendations to do just that. In addition to recommending where the collected meta-data should be kept, for how long, etc., etc. it also makes recommendations on how to better safeguard, communicate and store the legitimate (and legal) data we do collect and how to prevent future thefts and disclosures of genuine national security information.
Emphasizing the complexity of this entire issue, Stone concludes:
There are those who maintain that this program is obviously constitutional and those who maintain that it is obviously unconstitutional. They are both wrong. There is nothing “obvious” about this. If this ever gets to the Supreme Court, it will be interesting.
It certainly will be.
But, in the meantime, this last installment by Professor Stone, replete with reasoned and knowledgeable legal and constitutional arguments is a must read.
CODA:
The Transmittal Letter of the Report and Recommendations of The President’s Review Group on Intelligence and Communications Technologies to the President provides a good summary of the goals of the Group..
Dear Mr. President:
We are honored to present you with the Final Report of the Review Group on Intelligence and Communications Technologies. Consistent with your memorandum of August 27, 2013, our recommendations are designed to protect our national security and advance our foreign policy while also respecting our longstanding commitment to privacy and civil liberties, recognizing our need to maintain the public trust (including the trust of our friends and allies abroad), and reducing the risk of unauthorized disclosures.
We have emphasized the need to develop principles designed to create strong foundations for the future. Although we have explored past and current practices, and while that exploration has informed our recommendations, this Report should not be taken as a general review of, or as an attempt to provide a detailed assessment of, those practices. Nor have we generally engaged budgetary questions (although some of our recommendations would have budgetary implications).
We recognize that our forty-six recommendations, developed over a relatively short period of time, will require careful assessment by a wide range of relevant officials, with close reference to the likely consequences.
Our goal has been to establish broad understandings and principles that can provide helpful orientation during the coming months, years, and decades.
We are hopeful that this Final Report might prove helpful to you, to Congress, to the American people, and to leaders and citizens of diverse nations during continuing explorations of these important questions.
Richard A. Clarke
Michael J. Morell
Geoffrey R. Stone
Cass R. Sunstein
Peter Swire
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