Metadata or More San Bernardinos Let intelligence agents do their job before terror attacks, not in the bloody aftermath. By L. Gordon Crovitz
http://www.wsj.com/articles/metadata-or-more-san-bernardinos-1450646147
The massacre in San Bernardino, Calif., came a few days after a law went into effect banning access by intelligence agencies to key digital communications. It is time for the U.S. to get ahead of terrorism by finally allowing its intelligence agents to use digital tools before the next attack.
Soon after the San Bernardino massacre, law-enforcement agents discovered digital records left behind by Syed Farook and his wife Tashfeen Malik. If intelligence agencies had been allowed access to the information in real time, the terrorist attack might have been prevented.
Politics forces the National Security Agency to operate with blinders. The Obama administration blocked the agency from its post-9/11 practice of collecting metadata—tracking digital data on an anonymous basis, and then seeking a court order if Americans are involved—for emails and other digital communications. The law that went into effect just before the San Bernardino killings ended direct NSA access to historic phone records.
Despite concerns that terrorists can use encryption to stay dark, the unencrypted digital records make clear that Farook and Malik could have been discovered if the NSA had been allowed access to metadata:
At least since 2010, Farook and his neighbor Enrique Marquez watched Islamist videos on the Internet and read online magazines published by overseas terror groups. A few weeks before the massacre, Mr. Marquez said on Facebook, “My life turned ridiculous,” including becoming “involved in terrorist plots.” He was arrested last week on charges including conspiring to support terrorists. Intelligence agencies could have monitored his trail of videos, online magazines and Facebook posts.
Malik left her own digital tracks disclosing her Islamist beliefs and terrorist intentions before she applied for a visa to move to the U.S. Authorities have found messages Malik sent to friends on Facebook in 2012 and 2014 pledging support for jihad and for joining the fight.
The New York Times recently cited intelligence sources describing the couple bonding over jihad before they met, sharing their commitment to terror “on an online messaging platform, as well as emails and communications on a dating site.” FBI Director James Comey said the couple was “communicating online, showing signs in that communication of their joint commitment to jihad and martyrdom.”
A former undersecretary at the Department of Homeland Security, John Cohen, last week disclosed to ABC News that “immigration officials were not allowed to use or view social media as part of the screening process” when Malik’s application was processed. The agency, he said, worried about the “optics” of monitoring digital communications. A DHS spokesman said the policy is under review, while still taking “into account civil rights and civil liberties and privacy protections.” The DHS apparently doesn’t know that foreigners seeking visas have no such rights under the U.S. Constitution.
Metadata was a hot topic in last week’s Republican presidential debate, with Marco Rubio blasting Ted Cruz and Rand Paul for supporting the Obama bill limiting access to phone records, which Hillary Clinton also supported. This increasingly looks like a wedge issue on the Republican side.
Much of the criticism of metadata collection came in the wake of former NSA contractor Edward Snowden’s feverish accusations against U.S. intelligence in 2013. But despite the many stolen documents he revealed, Mr. Snowden showed no wrongdoing by NSA employees using metadata. Only 22 NSA officials had this authority, overseen by 300 compliance officers, a special court and the political branches of government.
The Fourth Amendment protects Americans only from “unreasonable” searches. The Founders intended reasonableness based on the circumstances. Courts have ruled that citizens have no expectation of privacy for bank records, phone calls, fingerprints, DNA or Facebook posts. In 2013 New York Federal Appeals Court Judge William Pauley confirmed the legality of collecting telephone metadata, noting in his opinion that such collection doesn’t violate the Fourth Amendment—and he went out of his way to say that 9/11 might haven been prevented if intelligence agencies had been collecting and analyzing metadata before the terror attacks.
Americans lose no privacy by allowing access to anonymous data, which when used properly only identifies suspects for courts to consider. “This blunt tool only works because it collects everything,” Judge Pauley wrote. “Without all the data points, the government cannot be certain it connected the pertinent ones.”
The choice is more metadata or more San Bernardinos.
Voters can now compare candidates according to their view of reasonableness: Is it more reasonable to let terrorists plan in secret or to let intelligence agencies have access to tools that could be at their disposal? Is it more reasonable to have intelligence agents gather data before attacks happen or only when it is too late?
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