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The NSA’s Metadata Program Can’t Be Justified

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I have a longer piece about the report of the Privacy and Civil Liberties Oversight Board up. To me, the key takeaway is that even if we assume arguendo that the program is legal, it certainly imposes substantial burdens on privacy and free speech rights that aren’t remotely justified given the lack of concrete benefits:

In a perverse way, programs that restrict civil liberties become self-justifying because of restrictions on civil liberties are simply assumed to increase security and order. For example, in their 2007 defense of Bush-era expansions of executive branch powers to combat terrorism, Terror in the Balance, the eminent legal scholars Eric Posner and Adrian Vermuele proceed under the (empirically undefended) assumption that there is a substantial policy space in which there is a direct tradeoff between civil liberties and national security. This assumption stacks the political deck against civil liberties, because most assertions of executive authority are assumed to increase national security by virtue of their burdens on freedom on the one hand, and on the other that the people most likely to have their rights violated are likely to be unpopular minorities. The tendency of public officials to exaggerate threats further throws the tradeoff out of balance.

But the NSA program illustrates that this assumed tradeoff is often unfounded. Even in theory, in a world of finite resources it’s far from clear that collecting metadata is a better means of protecting national security than searches based on individualized suspicion. Analyses of metadata may reveal suspects and evidence that might otherwise go hidden, but they also consume valuable resources searching data generated by people with no connection to terrorism. Whether this tradeoff is beneficial is, at best, questionable. Generally, one doesn’t add triple the size of the haystack before searching for the needle. Given the real burdens placed on fundamental rights, the burden of proof is on those asserting that the programs are effective enough to justify such burdens.

The report concludes, however, that such evidence is sorely lacking. The report concedes three theoretical advantages to preemptively collecting huge amounts of metadata: speed, historical depth, and breadth of potential contacts. That these programs have some value in theory, however, is insufficient to demonstrate that they are superior to other available methods or effective enough to justify their intrusions into the privacy of individuals. Ultimately, after considering a substantial number of cases where terrorist plots have been stopped, the report concludes that the NSA program does not come close to justifying its costs: Based on the information provided to the Board, we have not identified a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation.” In the rare cases where the metadata has provided leads pertaining to known terrorists, it had simply duplicated the work already being done by other law enforcement agencies such as the FBI.

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