The program is not without its defenders. Former NSA General Counsel Stewart Baker argues that with “minimization” safeguards, collection of the data is justified because of the risk of terrorism: "But for those who don’t like the [NSA data collection], the real question is 'Compared to what?' Those who want to push the government back into the standard law enforcement approach will have to explain how it will allow us to catch terrorists who use half-way decent tradecraft — or why sticking with the standard approach is so fundamentally important that we should do so even if it means more acts of terror at home."
In other words, Baker argues the potential to stop deaths from terrorism outweighs the NSA’s intrusion of our civil liberties. Of course, this requires that we trust government will not abuse access to this data. To be sure, the risk of this data being used as a tool of oppression is a serious concern and should not to be ignored. But even in the absence of a “tyrannical” government, there are still reasons to be concerned about how this data will be used.
First, there are probably too many people with access to the database. Right now, 1.4 million Americans hold “Top Secret” security clearances, the highest clearance available. That is more than the number of attorneys in the United States (1.23 million). Even if access to the database is limited to a fraction of those with Top Secret clearances, individual abuse of that access is not only likely, it is inevitable. Whether you agree with him or not, Edward Snowden himself is evidence of that risk.
Second, the authorized uses of this data are likely to extend beyond just counter-terrorism. If the data collection is justified for preventing terrorism, there is no reason why the data should not also be used to stop other violent criminals. Non-terrorism-related crimes are by no means less important, especially for the victims. Assume a young woman was savagely raped and murdered. Ten years later the police apprehend the killer, but he claims that he was hundreds of miles away on the night of the crime, and he brings in witnesses to testify to that fact. The prosecution suspects he is lying, and subpoenas his phone records to disprove his alibi. But alas, the phone company no longer retains that data. Why relegate the prosecution (or the victim's families) to the “standard law enforcement model”?
It is even easier to see how the criminally accused might be entitled to access evidence from a national database of phone call records. Already, one criminal defendant is demanding access to the NSA’s phone call data to prove his innocence in a pending criminal case in Fort Lauderdale, Florida. The defendant, charged with conspiracy to commit robbery, asserts that his telephone records will prove that he was not in the vicinity when the robbery was planned and executed. His cell phone company, however, no longer maintains those records. Should defendants be denied access to phone call records that could prove their innocence, or should they also have to settle for the standard approach? If the risk of death from terrorism justifies this dragnet collection and archiving, the risk of executing or incarcerating an innocent man should also justify access to those records — especially since the database has already been created.
If access is granted for criminal cases, civil case access will not be far behind. Phone records can certainly be relevant to all sorts of civil litigation. For example, issues regarding the decedent’s true intent are often at the very heart of probate disputes. Why should the decedent’s heirs be denied access to phone records and other call metadata that could help resolve those issues? Surely there is no privacy concern when the individual whose phone records are being examined is deceased.
In fact, why should we even limit this data to the justice system? There are indeed many historians who could put such data to valuable use when piecing together the historical record. What social interest is so important that we should risk passing down an inaccurate historical record?
The point is that once we decide the risk of terrorism justifies collecting and archiving every American's phone records, there is no logical reason to deny access to the database when it will serve important criminal justice, civil justice, historical, or other purposes.
Contemplating how the NSA phone records database may be expanded and misused leads us remember what is at stake: the right to privacy. Privacy is necessary for personal autonomy, and ultimately to liberty. The California Supreme Court has described the right of privacy as “the right to be left alone. ... It protects our homes, our families, our thoughts, our emotions, our expressions, our personalities, our freedom of communion, and our freedom to associate with the people we choose.” The claim is not so much one of total secrecy as it is of the right to define one's circle of intimacy. When the government takes our phone records without our consent, we lose our right to choose who sees that information and our privacy suffers.
It makes no difference whether the NSA must get a secret warrant before it actually views the private phone records it collects. The invasion of privacy occurs the moment a consumer’s phone records are seized without consent. If the NSA instead had secretly videotaped millions of Americans in the shower, would it matter if the NSA promised not to watch the videos without a warrant? Of course not.
Ultimately, this issue is far too important to be left in the hands of a secret court, applying secret rules. There must be an open, public debate about the issue, and Congress must clearly state the scope and limits of the NSA’s authority to collect these records. In 2006, a unanimous Congress found “the unauthorized disclosure of telephone records assaults individual privacy.” Congress should reaffirm this the right to privacy in our phone records, and demand full disclosure from the NSA about its domestic surveillance. After an open debate on the matter, Congress (not the president) must decide how to balance this privacy interest against the legitimate value, if any, of NSA surveillance.