Bulk surveillance of American’s telecommunications services by the National Security Agency (NSA) was, according to some, authorized in the Patriot Act Section 215 and was monitored by the Foreign Intelligence Surveillance Court (FISC).  But, the Second Circuit of the U.S. Court of Appeals ruled that Section 215 of the Patriot Act does not permit NSA to harvest in bulk the metadata on Americans’ telecommunications. “Metadata” includes time, locations, and calling/called numbers. If NSA really needs the metadata to trace the communications of terrorists and spies, it will need a fresh statement of its surveillance authority.

The Patriot Act’s Section 215 is set to expire on June 1.  If Congress does not act by then, NSA’s authority will be controlled by the Appeals court’s whim, and the court has a sour attitude toward NSA’s surveillance.  Since the Appeals court says bulk surveillance is wrong, it would be pointless to reauthorize NSA’s current authority (as some favor), since the issue will return to the court, quickly.

The USA Freedom bill is proposed as a Patriot Act replacement. It halts NSA’s collection and searches of bulk metadata. Instead “telecommunications firms would retain the information, subject to specific search requests from the government.”  The FISC would need to authorize the searches and the FISC’s must disclose more about its operations.  The bill’s authors say USA Freedom would be “at only a modest cost, if any, to public safety.”

The innocent public seems to be annoyed with the specter of big government collecting information on who they talk with, when, and where they are at any point in time.  They feel unjustly victimized and are inclined to favor stronger privacy protections.  They take actions to make their information opaque to government snooping.

Even beyond national security, many of us reflexively object to government collection of any personal information.  Agencies such as the Passport Office, the Internal Revenue Service, and the Social Security Administration collect substantial amounts of personal information.  The application for disability benefits invades your medical history.  The IRS’ 1040 Schedules A, C, D, and F invade your detailed financial status.  And those three agencies will investigate deeper when they suspect a significant misstatement has been filed.

Attempting to justify telecommunications surveillance by chattering about abstract potential threats does not work very well.  A short video of NSA sleuthing an actual terrorist plot would be helpful, and a half-dozen such real-world videos would be extremely helpful in making the public safety case.  Domestic examples would be far better than examples of conversations monitored abroad.

It is unclear that Congress can reach broad consensus on a bill that balances privacy and public safety, but there is no easy way out.  Doing nothing or reauthorizing the Patriot Act’s Section 215 are not viable options.  To bring the public along would require a campaign that emphasizes real world success using telecom metadata and protections for metadata collected on innocent Americans. The privacy protection details might engender public support for NSA’s work.

Providing a public voice in monitoring the FISC is necessary but trickier because FISC’s impact on the public is less known. The FISC allows almost nothing to be leaked about which NSA behaviors it tolerates or has vetoed, what arguments the government feeds the FISC, and the weight that FISC accords the public’s civil rights.

Perhaps the most galling aspect of FISC is that it considers only what the government has to say.  Government scores low in public opinion polls, an assessment regularly refreshed due to the tortured and evasive language in government press conferences.  Anyone appointed to monitor FISC should have a security detail and be subject to a genuine security clearance, not something ex officio or the result of a cheesy executive order.  Preferably the FISC monitor would not be an elected person since the monitor has to be the public’s guy, not burdened with political debts.

Alan Daley is a retired businessman who writes for The American Consumer Institute Center for Citizen Research