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The Necessity of the Haystack to Find the Needle: A Look into the Controversial NSA Bulk Collection

Through leaking thousands of top-secret documents owned by the National Security Agency (NSA), Edward Snowden publicly disclosed the broad interpretation of § 215 of the Patriot Act by the Foreign Intelligence Surveillance Court (FISC) in June 2013 (wordy).  With the leaking, the telephony metadata collection program known as the “bulk collection” program, was discovered, thus concern among American citizens over the use of their personal data and how it was obtained quickly spurred.  Citizens feared their privacy, as guaranteed by the Fourth Amendment of the United States Constitution, was being violated.  Former NSA director, Michael Hayden, stated that “in liberal democracies, the security services don’t get to do what they do without broad public understanding and support” and thus it is understandable that now, the American public believes there has to be more transparency of the NSA and the programs it implements.

Since the leaking of the documents, it has become apparent that there is a major clash between American citizens’ civil liberties and the NSA’s bulk collection program.  This program collects millions of phone numbers, call times and call durations in bulk. National Security has always been a priority for the protection of American citizens, and since 2001, many changes have been made to increase the strength of this front.  The USA Patriot Act was created in 2001 in response to the tragedy of September 11th.  It was enacted to preserve the safety of American citizens from terrorists by strengthening national security controls.  The Act was amended in 2006 to add the term “relevant” to § 215 to limit the broad potential powers the NSA has to collect data.   This amendment was added to protect citizens’ privacy.  As interpreted by the FISC, the NSA was able to argue that the amendment, in turn, actually expanded the NSA’s power instead of contracted it, as originally intended.

The Director of the NSA, General Keith B. Alexander, stated in a New York Times interview that in order to prevent terrorist attacks, the bulk collection of telephone and other electronic metadata from Americans was the most effective method.  General Alexander claimed that there is a “public misunderstanding about the information” the NSA collects but failed to clarify what this means.  General Alexander claimed in another Article by the Washington Post, “You need the haystack to find the needle.”

In response to the light that has been shed on the NSA’s controversial bulk collection program, Representative Jim Sensenbrenner (R-Wis.), otherwise known as the author of the USA Patriot Act of 2001, took a stand.  Sensenbrenner claims in an interview with the Washington Post that the original intent of the Patriot Act was not being followed, which was the result of inadequate oversight of the NSA.  The main oversight of the NSA is the FISC, which is primarily insulated from congressional and thus public oversight because of its secretive nature.  Therefore,  Rep. Sensenbrenner wishes to bring the bulk collection program to an end because of its obvious violation of the Fourth Amendment, which is meant to protect American citizens’ privacy and civil liberties.   Rep. Sensenbrenner stated that he intends to introduce a piece of legislation entitled the “USA Freedom Act” with Rep. John Conyers (D-Mich.) and Senator Patrick Leahy (D-VT), chairman of the Senate Judiciary Committee.

The main purpose of this bi-partisan bill is to tighten the language of § 215 of the Patriot Act to limit the collection of business records, such as telephony metadata, to non-United States citizens.  With the passage of the bill, the NSA would be required to follow three steps.  First, the NSA would identify a non-United States citizen involved in a terrorist organization.  Second, the NSA would obtain a FISC order to find out who the person’s contacts.  Finally, the NSA would use tools to obtain telephony and other metadata to find others involved in the plot in connection with the suspect.  Rep. Sensenbrenner claims tighter language is necessary to ensure § 215 is not improperly interpreted by the FISC.  Having the specified three steps clearly states the process the NSA can obtain information rather than the current method that is identified by “find the needle in a very large haystack”.  The haystack, in this case, is the citizens’ and noncitizens’ metadata, and the needle is the terrorist suspect.  The goal of the bill is to ensure that metadata collection is limited to terrorist suspects and not the average citizen, in order to protect the Fourth Amendment’s intent.

Senate Intelligence Committee Chairwoman, Dianne Feinstein (D-CA), agrees with General Alexander and supports the NSA telephony metadata collection program.  Senator Feinstein seeks to introduce legislation to increase transparency between the NSA and the American public, while preserving the metadata program, in order to thwart terrorist attacks.  Rep. Sensenbrenner believes this proposal is a “fig leaf” approach that will not solve the fundamental issue of the violation of American citizens’ privacy and civil liberties.  Rep. Sensenbrenner’s legislation has support both in the House and the Senate, and it will be introduced on the floor of the House and through the Senate Judiciary Committee simultaneously. This will circumvent possible opposition by members of the Senate Intelligence Committee.

If the haystack could be minimized to preserve the Fourth Amendment of the Constitution, but still protect the citizens from potential terrorist suspects, why would Congress not vote for Rep. Sensenbrenner’s USA Freedom Act?  Whether Rep. Sensenbrenner or Senator Feinstein will prevail in this debate will be up to Congress in its decision over the necessity of the haystack to find the needle.


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