Has Metadata Collection Helped Protect Us?

Has the collection of phone metadata on every American helped keep the country safe? According to testimony given this morning, the answer is yes, but not in a very significant way.

Julian Sanchez, a Cato Institute research fellow who has done excellent work on this story, summed it up this way:

So: 7 years of collecting every American’s records has “contributed” to maybe 10 investigations, no claim that contribution essential.

— Julian Sanchez (@normative) June 18, 2013

Actually the testimony was that slightly more than ten cases benefited from the call metadata database. So maybe the number is 11-12. But again the claim was that the database made a contribution, not that it was strictly necessary or essential to complete the investigation.

Sanchez has written an excellent piece pushing back on the idea that business records should be available to the government en masse:

There is no free-floating “reasonableness” standard found in thecommon law of search and seizure in the Founding Era.  Rather, thephrase “unreasonable searches” enters the American lexicon through theprovision of the Massachusetts Constitution that served as a templatefor the Fourth Amendment. 

That was penned by John Adams, who scholars believe was invoking the language of his great mentor James Otis,who had famously insisted that any statute authorizing general,non-particularized searches was “against common right and reason” andtherefore “void.” In other words, “unreasonableness” was not meant toinvite the kind of “balancing test” so beloved by the modern SupremeCourt–though as technology presents novel problems, some amount of thatis, perhaps, inevitable. Rather, “unreasonableness” was specificallyassociated with the absence of particularity–of the kind exhibited by,for instance, an authority to indiscriminately collect all Americans’phone records.

Sanchez concludes “the appropriate question is whether the creation of a system ofsurveillance perilously alters that balance too far in the direction ofgovernment control, whether or not we have problems with the current useof that system.”