News Media Misleads on Today’s Court Decision on NSA Metadata Program

Media outlets, privacy advocates and libertarians are crowing today over a New York Appeals Court decision that the NSA metadata program goes beyond what Congress intended in the Patriot Act.  Opponents claim the metadata program is unconstitutional and violates the privacy rights of Americans.

The reaction to this decision has been misleading. The decision did not find the metadata program to be unconstitutional or a violation of privacy rights as the plaintiff, the ACLU, claims.  It also allowed the program to continue due to pending legislation on this issue that must pass before it expires on May 30.

Under the metadata program, NSA collects large numbers of phone records – not the contents of phone calls – and uses it to make connections between terrorist suspects.  This program is subject to strong oversight by the Executive Branch, Congress, and the courts and is only used for national security investigations.  Only 22 people at NSA are allowed access to this metadata and they are barred from any data-mining, even in connection with an investigation.

It is worth noting that this is just one of many court decisions on the metadata program.  35 out of 38 court decisions have found it to be constitutional.

Critics of the program like to quote a December 2013 opinion by Judge District Judge Richard Leon who found the metadata program to be unconstitutional.  However, instead of shutting down the program, Leon stayed his decision pending a government appeal.  When this appeal was heard by the D.C. Circuit Court of Appeals panel last November, the judges were skeptical about claims the program is unconstitutional or violates privacy rights.

While its detractors refuse to admit it, the NSA metadata program has been a successful tool in stopping terrorist attacks.  It has been strongly defended by many intelligence officials and members of Congress, including Senator Dianne Feinstein (D-California), the former Chairwoman of the Senate Intelligence Committee, who said during a January 14, 2014 Judiciary Committee hearing that this program helped stop terrorist plots to bomb the New York City subway, the New York stock exchange, and a Danish newspaper.

Given the determination by ISIS to recruit homegrown terrorists in the United States and this week’s ISIS terrorist attack in Garland, Texas, it is vital that Congress reauthorize the metadata program without restrictions that tie NSA’s hands.  It is time for the media and members of Congress to stop the fearmongering over this issue and support an important counterterrorism tool that has helped protect the U.S. homeland from jihadist terrorists.