Thursday, March 6, 2014
Peter Margulies (Roger Williams University School of Law) has posted Evolving Relevance: The Metadata Program and the Delicate Balance of Secrecy, Deliberation, and National Security on SSRN. Here is the abstract:
The NSA’s metadata program, approved by the Foreign Intelligence Surveillance Court (FISC) under § 215 of the USA Patriot Act, has spurred a substantial debate over privacy, secrecy, and democratic deliberation. Critics argue that the bulk collection of metadata is far too sweeping to be "relevant to an authorized investigation" under the statute. Critics also target the secrecy surrounding the FISC’s decisions. That secrecy, critics charge, eviscerated the checks that public deliberation provides. The government has defended the program, arguing that the ability to query metadata with a narrow range of phone numbers specifically linked to terrorism preserves privacy while aiding counterterrorism investigators. Defending the checks and balances in place, the government points to vigorous pre-Snowden questioning of NSA surveillance by engaged legislators, Congress’s reenactment of § 215 in 2010 and 2011, and the FISC’s 2009 remedies for NSA noncompliance.
To resolve the statutory issue that has divided the government and its critics, this Article advances a model of evolving relevance. From an evolving relevance perspective, § 215 is part of a long democratic experiment in the integration of secrecy, deliberation, and strategic advantage that dates to the Constitution’s framing. The rapid growth of technology has heightened the stakes of that experiment, while making its results even more uncertain. The Framers did not predict today’s technology. However, they understood secrecy’s risks and benefits. Secrecy in diplomacy or surveillance is sometimes necessary, since revealing either can render each ineffective. However, secrecy can also be ruinous, sabotaging deliberation and undermining liberty. The Framers’ challenge to future generations is building in checks and balances that will enable secrecy’s virtues while managing its risks.
Evolving relevance has a fiduciary dimension, which stresses the government’s duty to both safeguard national security and avoid methods that Madison, in Federalist No. 41, described as "inauspicious to… libert[y]." Applied to § 215, evolving relevance’s premise is that Congress intended to keep the statutory relevance standard fluid to accommodate changes in technology and the terrorist threat while maintaining appropriate privacy safeguards. To fulfill those purposes, Congress drafted § 215 to permit broad collection, narrow but consistent congressional oversight, and judicial imposition of rigorous search protocols that limit NSA access to metadata.
Evolving relevance recognizes the need for reform. The FISC’s work would benefit from a public advocate who could weigh in on substantial legal issues. The public advocate would prod the FISC to consider alternative legal arguments and refine the reasoning in its decisions. Careful institutional design, of the kind that the Framers pioneered, would ensure that the advocate served this salutary function in a manner that preserved the FISC’s efficiency.