So much bluster on both sides: what is one to make of the so-called meta-data mining by the NSA? Left-wing wackos like Bernie Sanders and conservatives wing-nuts like Rush Limbaugh find themselves uncomfortably on one side of the issue—while other left wing wackos and conservative wing-nuts find themselves on the other. First, the facts, as we understand them:
The National Security Agency has at times mistakenly intercepted the private email messages and phone calls of Americans who had no link to terrorism, requiring Justice Department officials to report the errors to a secret national security court and destroy the data, according to two former U.S. intelligence officials.
At least some of the phone calls and emails were pulled from among the hundreds of millions stored by telecommunications companies as part of an NSA surveillance program. James Clapper, the director of national intelligence, Thursday night publicly acknowledged what he called “a sensitive intelligence collection program” after its existence was disclosed by the Guardian newspaper.
Blair drew a distinction between the “collection” or mining of data on specific U.S. citizens by NSA and the massive trove of phone call information that was turned over to the NSA under a negotiated agreement among intelligence officials, the telecommunications companies and the FISA judges. The purpose of the FISA order was to store information in the event that U.S. intelligence agencies need to access it after getting specific intelligence that somebody in the U.S. might be tied to terrorism. It is only at that point, he explained, that the NSA goes back to the court to get permission to mine or “collect” the data.
But the intelligence community’s distinction between “storing” and “collecting” data does not satisfy privacy and civil liberties advocates. “They are playing games,” said Cindy Cohn, a lawyer for the Electronic Frontier Foundation, which is suing U.S. phone companies over their cooperation with the NSA. Of the improper collection acknowledged by Blair, she said, “Who knows how many times this has happened?”
Let’s look at that argument in a little more detail:
[I]ntelligence officials – echoed by President Obama today, who characterized access to metadata a “modest encroachment” on privacy – are implying that the information they’re collecting is relatively innocuous, since they don’t listen in on the actual phone conversations.
In an op-ed for Reuters, Ben Wizner and I explain why government access to metadata – which reveals whom you talked to, from where, and for how long – is a gross privacy invasion:
A Massachusetts Institute of Technology study a few years back found that reviewing people’s social networking contacts alone was sufficient to determine their sexual orientation. Consider, metadata from email communications was sufficient to identify the mistress of then-CIA Director David Petraeus and then drive him out of office.
The “who,” “when” and “how frequently” of communications are often more revealing than what is said or written. Calls between a reporter and a government whistleblower, for example, may reveal a relationship that can be incriminating all on its own.
Repeated calls to Alcoholics Anonymous, hotlines for gay teens, abortion clinics or a gambling bookie may tell you all you need to know about a person’s problems. If a politician were revealed to have repeatedly called a phone sex hotline after 2:00 a.m., no one would need to know what was said on the call before drawing conclusions. In addition sophisticated data-mining technologies have compounded the privacy implications by allowing the government to analyze terabytes of metadata and reveal far more details about a person’s life than ever before.
As I wrote at the beginning, conservatives and liberals are on both sides of this issue. I don’t have a clue who’s “right”. But I do have a finely-tuned hypocrisy sensor, if I do say so myself… takes one to know one, I guess.
Liberals who shrieked about Bush’s efforts in this area have no business remaining silent now; similarly, conservatives who defended those efforts then can’t reasonably attack them now (unless there are substantial differences). That’s why my post on the subject, “What if Bush Had Done This?” answered with “Oh wait, he did!”
As a conservative, I like nothing more than to watch a blowhard liberal choke on his words. I am often spoiled for choice. But if that’s all I get, it becomes—like a second slice of double-fudge chocolate cake or a third measure of Lagavullin single malt—too much of a good thing. A very good thing, and way too much.
I said above that we need the facts, and we need to know the differences between Bush’s initiatives and Obama’s. But this is top secret classified material, so we can’t. So we have to assume, and let’s assume the worst. The NSA and the FBI (why not?) have at their disposal every telephone call, email, and web page that all of us have placed, received, written, or visited over the last, say, seven years.
All of them; you do the math. They don’t necessarily act on them, are forbidden to do so without further authorization (with the occasional “mistake”), but they have them—just in case. Feel better? Me neither.
This is substantially more data than I thought they were mining. Maybe that makes me ignorant, but it also makes me a little perturbed. Remember my high dudgeon over the airport scanners? It wasn’t so bad, I once thought, that because Muslim terrorist manqué planted a bomb in his shoe, we all had to take off our shoes before boarding a plane (though only in American airports). No, because another Muslim terrorist manqué loaded his shorts with a bomb, we all had to get our junk x-rayed and appraised by those stalwart and sober sentries of the TSA. Some of us have little to hide, and much to declare, but that’s not the point.
The point was it was everybody. Grannies in wheelchairs and little girls with stuffed animals. Our solution to a very real, if narrowly defined, threat to national security was to put everyone’s privates on parade. Beyond the massive invasion of privacy, it was a colossal waste of time and money. Just as loaded loafers yielded to Semtex shorts, so Semtex shorts yielded to undetectable explosive undies. The terrorists had moved on, while we were still asking curvaceous blondes to stand spread-eagle in front of leering “security” agents and say cheese. (I’m just envious.)
Here’s what the president actually said:
[...] But my assessment and my team’s assessment was that they help us prevent terrorist attacks. And the modest encroachments on privacy that are involved in getting phone numbers or duration without a name attached and not looking at content, that on, you know, net, it was worth us doing. Some other folks may have a different assessment of that. But I think it’s important to recognize that you can’t have 100 percent security and also then have 100 percent privacy and zero inconvenience. [...]
Not exactly: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Nor is it: “A society that will trade a little liberty for a little order will lose both, and deserve neither.”
But then one can’t always be so articulate. (Or clean.)
We weren’t willing to make the difficult choice to identify likely and possible suspects for additional screening, choosing instead to put everyone through the Boob-o-Vision 3000™ and the Junk-o-Meter Deluxe™. How that meets “probable cause” or constitutes a “reasonable” search and seizure is lost on me, but most of you were fine with it. I could have led a citizen’s revolt and gotten myself arrested as a domestic terrorist (more likely just a nuisance)—or I could just have chosen to fly less and submit when so commanded. I’m not proud that I chose the latter.
I had no problem with FISA warrants when I thought they involved intelligence agents asking for specific searches through specific channels, more secretive and more selective than ordinary channels. Maybe that was the process once upon a time. But now this administration—which has hassled conservative Americans for two years (at least), using the most empowered and unassailable Executive Branch departments at its disposal—is asking us to trust their “modest encroachments on privacy” (which sounds like being a little bit pregnant). Every electronic conversation, spoken or written, every online query or search, all in government hands—what could go wrong?
“You can trust us; we’re not like the others,” President Obama is saying. But I can’t. I won’t.