It has become increasingly clear that many politicians who support the NSA meta-data surveillance program do not understand the substantive arguments against that program. Although the arguments have been made in numerous forums, I'm not sure that they have all been collected in a single brief. The purpose of this blog post is to summarize the key points in plain language that is easy to understand.

There are three key points.

1. The meta-data program is not authorized by law.

If Congress had intended to authorize the NSA to collect all business records everywhere, you'd think they would have written a statue that actually says that. However, Section 215 of the PATRIOT ACT only authorizes the collection of business records if those records are relevant to a terrorism or foreign intelligence investigation. If you ask most Americans if they think their personal phone records are relevant to a terrorism investigation, they are going to say no. Therefore, there are serious questions as to whether this statute actually authorized such a broad records collection program.

The counter argument that has been made in defense of the program is that any business record is relevant to a terrorism investigation if the reason that the NSA wants the record is because they are investigating terrorism. The argument goes that the purpose of the "relevance" limitation is to prohibit the NSA from collecting records for a project that has nothing to do with intelligence or anti-terrorism work. Its hard to imagine a project at the NSA that might involve the collection of domestic business records that has nothing to do with anti-terrorism or counterintelligence work, but according to the defenders of the meta-data program, the "relevance" language was intended to prohibit the use of this authority for those kinds of projects.

Frankly, if Congress intended to authorize the collection of everyone's meta-data, they should have written a statute that clearly said so.

2. The meta-data program violates the First Amendment to the Constitution.

The Constitution protects the right to freedom of association. Telecom meta-data is essentially a record of your associations - who you communicate with, when, and for how long. If the government keeps tabs on your associations and stores that information for years, this might deter your free exercise of your right to associate with other people. You might reasonably fear that your associations could come back to haunt you, and you might choose, therefore, not to communicate with someone that you want to communicate with.

This concern is rational even if the current government would not sanction you for the company that you keep. The records of your associations are kept for a long time, and if a future government decided they didn't like one of your associates, the records of your association with that person would be available for them to examine. Given the history ... [ Read More (0.4k in body) ]