“Relevance” Joins “Imminence” and “Is” in Pantheon of Meaningless Words

Jeffrey Rosen says that the Obama administration’s white paper defending the NSA’s surveillance programs is “flimsy and weak”:

The White Paper, released on August 9, is surprisingly mostly in the lameness of its effort to justify what it calls “Bulk Collection of Telephony Metadata under Section 215 of the Patriot Act.” The core of the argument is an attempt to redefine the meaning of the word “relevance” beyond recognizing, just as the administration’s earlier, and equally flimsy, drone memos attempted to redefine the meaning of the word “imminence” in the context of responding to an imminent threat

….As the Electronic Privacy Information Center notes in a brief filed last week with the Supreme Court, both Congressional supporters and opponents of Section 215 explicitly interpreted the “relevance” language to limit bulk collection of data, not to permit it. On July 17, during a House judiciary committee hearing, Representative James Sensenbrenner, the author of section 215, said that Congress amended the law in 2006 to impose the relevance requirement in “an attempt to limit what the intelligence community could be able to get pursuant to Section 215.” And during the debate over the 2006 amendments, Sen. Ron Wyden and others stressed that the relevance standard would address “concerns about government ‘fishing expeditions.’”

There’s something that has never rung quite true to me about this. Congress knew all about the bulk collection of telephone records in 2006. It was big news. If they truly meant to rein it in, there was nothing stopping them from including clear language to that effect. So why didn’t they? Especially given that many (most? all?) of them knew perfectly well that the program was never halted?

Beyond that, I still don’t understand why NSA and the Obama administration are so resistant to reforming this program. After all, they don’t have to collect all the metadata. They could simply require the phone companies to keep it. Alternately, some other agency could collect it, and release it only if served with an individualized warrant. This would be inconvenient, but if NSA really does only 300 searches per year, as they claim, it wouldn’t be that inconvenient. Nor would it take too much time if the warrant procedures were set up efficiently. Either of these alternatives would reduce the fear that NSA can simply trawl through phone records whenever it wants, and would do so without seriously compromising its ability to conduct genuine investigations.

So why the reluctance to do something like this?


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