Despite Assurances, Civil Libertarians Blast NSA Programs

In a speech Friday, President Obama tried to assure the public that the National Security Agency surveillance programs that recently came to light are all legal and have proper oversight. That assurance is not putting everyone at ease. Robert Siegel speaks with Cindy Cohn, the legal director for the Electronic Frontier Foundation.

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From NPR News, this is ALL THINGS CONSIDERED. I'm Audie Cornish.

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And I'm Robert Siegel. President Obama was at pains today to defend the National Security Agency programs that were uncovered this week by The Guardian and The Washington Post. He said nobody is listening to your telephone calls and he assured the country that these intelligence efforts come with strict government oversight.

PRESIDENT BARACK OBAMA: And if people can't trust not only the executive branch, but also don't trust Congress and don't trust federal judges to make sure that we're abiding by the Constitution, due process and rule of law, then we're going to have some problems here.

SIEGEL: And the president does seem to have some problems here because some people worry that these programs are simply too intrusive. Cindy Cohn for one. She's legal director for the Electronic Frontier Foundation, which has campaigned against government surveillance and she joins us from San Francisco. Welcome to the program.

CINDY COHN: Thank you.

SIEGEL: The president says in the case of telephone logs, the executive branch gathers only what is called metadata. The Congress knows all about this and the courts have to approve of it so you should feel protected. Do you?

COHN: No. Of course not. A secret government isn't a democratic government. There's a missing piece here, which is the American people and our ability to exercise our rights to vote and our rights to protest in order to say when the government has gone too far.

SIEGEL: But do you, first of all, accept a distinction between what is referred to as metadata, which is to say all of the phone calls that I have made, what number they were to and the duration and frequency of those calls and the content of those calls, the actual conversations?

COHN: Well, obviously, there's a bit of a distinction, but I think that, you know, we live in this age of big data and I think most people would be very uncomfortable with the idea that the government is tracking every single phone call you've made, who you're talking to, how long you're talking to them for and likely, where you are when you're talking to them in this age of cell phones.

That's invasive. It's intrusive and it's downright creepy. I also think it violates the Fourth Amendment.

SIEGEL: Would you accept the distinction that they're not exactly tracking all of our telephone calls, but they are being given the right to track absolutely everything and within that universe of all telephone connections, they were actually looking at fairly limited threads of conversations?

COHN: Well, look, we know that whenever the government gets huge amounts of unchecked power, bad things happen. And that's why we have checks and balances. And the fact that this whole thing is secret should raise a lot of eyebrows about whether they're really doing something as narrow as now they're asserting that they're doing.

I mean, I think that the moment of just trust us, you know, is long past here. They need to come clean about what they're doing, what processes they're using and then the American people can decide. But I think the fact that they're getting absolutely everything in the first instance should raise a lot of eyebrows and a lot of Constitutional concerns. This is unprecedented.

SIEGEL: How do you answer the argument, which is obscured by security concerns, that connecting dots in a vast universe of phone numbers has, in fact, protected us from terrorist attacks? It works and that's why we need to do it.

COHN: I'm not sure whether it's true because they'll only tell us the conclusion. But, of course, you have to balance government power with the tradeoffs and the questions have to be asked. How many blind alleys do you go down? How many false positives, how many people are falsely accused?

SIEGEL: There's a difference, though, between saying let's say that I've been falsely accused of something and saying that checking all of my phone calls turned out to be a blind alley, lead nowhere and so they chucked that information out. Or do you think it's the same thing?

COHN: Well, I think they're both problems that need to be considered, you know. It's pretty well established that a bigger haystack doesn't make it easier to find needles. It makes it harder. So again, I think there is a dream here and there's some magical thinking that somehow the government can make us safer if we give up all of our privacy.

But I think it's a false choice. And the fact that the government won't tell us what they're doing and how they're doing it and why they're doing it ought to raise eyebrows even further.

SIEGEL: Defenders of the phone log collection program say that the NSA doesn't listen to conversations or search them further unless they go back to the intelligence court, the FISA court, and show cause for why they should look into that particular, say, phone number or person. As you understand it, how high a bar is it for the FISA court to grant permission for that further investigation, that further search?

COHN: It's not clear. This stuff is all so secret now. I mean, again, if the government wants to release the rules that they're following, then we can evaluate whether it's high enough. It's clearly not a probably cause warrant, which is what the Fourth Amendment requires. I suspect it's something like reasonable suspicion, which is a much, much lower bar.

SIEGEL: You mean, they don't have to show there's probably cause that the person who uses this particular cell phone is involved in something fishy, just have a reasonable suspicion that she might.

COHN: You know, we don't know the answer to what standards they're using, but I suspect that that's probably the line. And remember, probably cause warrant is a very high standard in the law and it requires that this particular - it's got to be particularized - this particular person is involved in something and that listening in on their calls for a wire tap will actually aid in the investigation.

The question, I think, for the government is, is that the standard that you're using and if so, how is that being evaluated? And, of course, it's only a one-sided conversation, right? It's clear that the people whose information is being sought here don't have an ability to present their side of the story.

SIEGEL: Well, Cindy Cohn, thank you very much for talking with us today.

COHN: Thank you.

SIEGEL: Cindy Cohn spoke to us from San Francisco. She is the legal director for the Electronic Frontier Foundation.

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