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D.C. Court Allows NSA Metadata Collection
U.S. Secretary of Defense Ash Carter delivers remarks while visiting the NSA and command headquarters March 13, 2015 in Fort Meade, MD. (Chip Somodevilla/Getty Images)

D.C. Court Allows NSA Metadata Collection

Walter Russell Mead

The legal battle over the NSA metadata surveillance program continues, as a DC appeals court has allowed the program to continue operating—albeit for technical reasons. The Washington Post reports on the ruling, which kicked the case back to a lower court after finding that the person who filed the suit lacked standing:

The panel’s ruling also reversed a ban on the NSA’s collection that had been imposed — and temporarily stayed — by a district court judge in December 2013.

The strictly procedural ruling does not address the constitutionality or legality of the program.

But while this case winds through court, some of the issues it involves may already be largely moot. In June, President Obama signed into law the USA Freedom Act, which will put strict new controls on data collection and is set to take full effect in December after a “transition period”:

At the end of the transition period, the NSA will be barred from collecting domestic phone records in bulk under the Patriot Act. Instead it will be required to obtain court approval to ask companies for phone numbers of individuals with suspected links to terrorism. The companies under court order will return to the agency metadata related to those calls and potentially calls linked to them.

The fusion of information with state power will be one of the driving forces of the 21st century, in both foreign and domestic politics. Corporations like Google already know much more about what people think and how they behave than any government in the past; both in the liberal west and in authoritarian countries we don’t need to name, governments will be increasing their own access to the troves of information now available on the web.

This will force us into nothing short of a redefinition, in some respects, of civil liberty. When, sitting in your own living room, you are interacting with people from all over the world, and when, every time you venture onto the internet, you are entering a wilderness as full of predators and dangers and powerful actors as any Enchanted Forest in any fairy tale ever told, what is the meaning of privacy? Solitude isn’t private in the age of the web, at least as things are shaping up now.

So how do we manage the tradeoffs between the limits of government power, the boundaries of individual freedom, and protection against the new capacity to commit crimes against individuals (fraud), companies (hacking), and the common safety (terrorism and cyberwar) that we already face today and will face in an even larger scale in the future?

The basic answer is that nobody knows yet. This is all too new, happening too fast, and the changes in technology are outpacing the changes in our ability to process and legislate them. And that is likely to be the case for some time. In spite of the techno-pessimists who tell us that innovation is fading away, the world of the internet continues to develop in new and surprising ways, bringing new challenges as well as new benefits—think, for example, of the future of car-hacking in a world of autonomous vehicles.

But the news from the U.S. on this front is not that bad. We have a 300 year tradition of balancing civil liberties, government power, and the safety of the community through a mix of legislation, judicial oversight, and public debate. We don’t always get it right—just ask the Japanese who were interned during World War II. But as a society we’ve developed a reasonably good track record at dealing with the social, political, and legal consequences of technological change.

The old system seems to be working even now. The NSA suits winding their way through the courts show that serious people are asking the right questions; we’ve had some legislative change and it’s likely that more will come. The situation is complex. The questions on these issues are important, and we don’t know the answers. Moreover, policy is, and must remain, a moving target as both the technological and the security situations shift. Given all that complexity, we are probably doing about as well as can be expected as American society tries to find its way forward. But success can’t be taken for granted, either. The courts, the Congress, and the supreme American tribunal of public opinion will have to stay engaged.

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