Can Privacy Be Saved?

By David Cole

The New York Review of Books - March 6, 2014

When the secretive Foreign Intelligence Surveillance Court (FISC) first authorized the National Security Agency in May 2006 to collect and search the telephone metadata records of every American—including every number we call, how often we call, when we call, and how long we talk—it did not even write an opinion justifying its decision. Judge Malcolm J. Howard, one of eleven federal judges hand-picked by the chief justice of the Supreme Court to serve on the FISC, simply issued a secret ten-page order, largely comprised of the rules and regulations under which the program was to operate. The order included no discussion whatever of whether the program was constitutional. It asserted formulaically that the government had satisfied the requirements of Section 215 of the USA Patriot Act, but included no explanation of how the program did so.

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