June 6, 2013— -- When the Guardian revealed late Wednesday that the Obama administration secretly collects phone records of millions of Americans on a daily basis for a national security surveillance program, critics immediately began comparing the current president to his predecessor, George W. Bush.
Bush, after all, was infamous for starting a still-mysterious National Security Agency program to eavesdrop on phone calls, texts, and emails by U.S. citizens overseas after the terrorist attacks of September 11, 2001.
But that comparison misses a larger point: Bush never got permission from courts to listen in on those phone calls. Obama's administration, on the other hand, is working within an existing legal framework to get subpoenas, warrants, and orders to access these records. That represents a big difference in terms of constitutional checks and balances.
In a 2007 speech by then-Sen. Barack Obama, the presidential hopeful pledged to chase terrorists "without undermining our Constitution and our freedom." He promised to work with the legal system set up by the Foreign Intelligence Surveillance Act (FISA) of 1978, in which court judges can secretly review the government's plans to track suspected terrorists in advance. "That means no more illegal wire-tapping of American citizens," Obama added:
"No more national security letters to spy on citizens who are not suspected of a crime. No more tracking citizens who do nothing more than protest a misguided war. No more ignoring the law when it is inconvenient. That is not who we are. And it is not what is necessary to defeat the terrorists. The FISA court works. The separation of powers works. Our Constitution works. We will again set an example for the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary."
By getting a court order to force Verizon to turn over its customers' call records, Obama stuck to the substance of his pledge -- if not to its spirit.
But that may be cold comfort to defenders of privacy -- and to Verizon customers. The FISA courts have often been accused of operating as a rubber-stamp for government spies, calling into question whether they really represent much of a check on presidential power. That seems to have been true in this case: While the court gave Obama's NSA the power just to read Verizon phone records between April and July of this year, at least one source told The Washington Post that this was a renewal of a phone-log spying program that's been approved every 90 days by the court going all the way back to 2006.
And even if it's technically legal, the government's desire to review millions of people's phone calls "on an ongoing daily basis" is enough to give every smartphone user the creeps. The Guardian's investigation was based only on one top secret court order for Verizon phone records, which was leaked to them by a confidential source. It's possible that similar secret orders exist for other U.S. phone carriers, like AT&T and T-Mobile.
But the court also threatened to prosecute anyone in Verizon who discusses the existence of the surveillance program, so it's safe to say that unless another leaker risks jail to share secrets, we may never know if other companies are handing phone records over to the NSA.