In policymaking, as in life, there is an important difference between can and should. Whether or not a particular practice is constitutional does not make it sound. Whether the government is permitted to do something or not does not mean that it ought to.
The raging debate over government surveillance programs has a tendency to conflate these distinct decisions. That muddling has the unfortunate effect of enhancing the power of the judiciary and diminishing the role of citizens in choosing where to strike the balance between privacy and security.
Judges, if we prefer, can make that delicate assessment for us. In the end, the Constitution exists as an irreplaceable backstop against government overreach. But society is — we are — better off assuming the power to decide how much personal information to cede, under what circumstances and to whom, in the ever-growing enterprise of safety.
Recent events offered a coincidental roadmap to the alternative approaches. Federal judges have reached disparate conclusions on whether the National Security Agency's collection of Americans' telephone metadata probably violates the Fourth Amendment prohibition against unreasonable searches and seizures. And the White House has released a report by a panel of legal and intelligence experts recommending a massive retrenchment in the metadata program, keeping the records in the hands of private companies and requiring intelligence analysts to obtain some form of judicial approval before querying the records in the hunt for terrorist links among the terabytes.
The constitutional question is fascinating, and U.S. District Judge Richard Leon's ruling is not the final word; a U.S. district judge in New York last week countered that the program is, indeed, constitutional. Leon's argument was that technological advances have outpaced Fourth Amendment jurisprudence.
The key precedent enabling the government to obtain telephone records is a 1979 case, Smith v. Maryland, in which the Supreme Court held that telephone subscribers enjoy no legitimate expectation of privacy in the numbers they dial. But changes in technology suggest that the dissenters had the better view. Perhaps Leon jumped the gun in deciding that Smith was no longer good law, but the time has come to rethink its assumptions.
The court gets the final say, though, only on what the Constitution commands — not on what government should do.
First, and to my mind most important, is ensuring external oversight for the decision to search metadata. Currently, such approvals are left to 22 people at the NSA — 20 line personnel and two supervisors — who determine whether there is a "reasonable, articulable suspicion" that the number to be searched "is associated with" a terrorist organization.
The panel recommended that the NSA be required to seek authorization from the Foreign Intelligence Surveillance Court -- much as police officers obtain speedy approval for search warrants from magistrates. The cost to public comfort of having such decisions left entirely to intelligence officials outweighs the benefits.
More complicated, because it involves as yet unbuilt capabilities, is the panel's recommendation that telephone companies or another third party retain the data. That switch could, as the panel noted, "reduce the risk, both actual and perceived, of government abuse."
Technology has created Fourth Amendment quandaries that the Founders never could have imagined. What amounts to an unreasonable search and seizure when data, not domiciles, are involved? What constitutes a legitimate expectation of privacy in a technological age? These are questions not just for judges but for us all.