The defenders of the status quo say that with these bulk phone records, the government may be collecting lots and lots of data on innocent Americans, but no one should worry because they have rules about who gets to look at it and when. There are multiple, serious problems with this "trust us" argument.
No 1, when the Founding Fathers wrote the fourth amendment, they didn't say:
It's OK to issue general warrants, as long as you have rules for when you're allowed to look at the papers you seize.
The Founders said that the government should only be allowed to obtain someone's private papers and effects
if they have evidence that the person is involved in a crime or other nefarious activity. And the reason they said that is that collecting private information about people has an impact on their privacy whether you actually look at it or not.
No 2, none of these rules involve individual review by a judge. If the NSA decides that it wants to look through the bulk phone records database or conduct a backdoor search for a particular American's emails, it can do so
without getting the approval of anyone outside the NSA. So I'd argue that there aren't enough independent checks on the government's authority.
For No 3, I'll go back to looking at the intelligence agencies' track record. These rules have been broken … a lot. In 2009, the Fisa court itself ruled that, and I quote:
The minimization procedures proposed by the government in each successive application and approved as binding by the orders of [the Fisa court] have been so frequently and systematically violated that it can fairly be said that this critical element of the overall [business records] regime has never functioned effectively.
What does that legal jargon mean? That's legalese for a serious smackdown of the government by the court.
Even if these rules were somehow written in a way that totally erased the privacy impact of bulk records collection – which I don't think is possible – the fact is that the routine violations of these rules over the years clearly demonstrate that trying to rely on them is a flawed approach.