This article first appeared in the St. Louis Beacon: The typical American citizen could be forgiven for being confused about the seriousness of the disclosure that the National Security Agency is collecting everyone’s telephone data as part of its effort to detect terrorist communications.
From one point of view, the disclosure of the NSA’s big data collection program is one of the most significant security leaks in U.S. history. It a massive invasion of every American’s privacy and proves the existence of the "surveillance state."
From another point of view, the existence of the program has been known for years and clearly is legal. The government isn’t listening to phone calls. And only a tiny portion of the data collected is ever analyzed and then only if there is a plausible foreign terrorism connection.
So which is right: The Obama administration is invading every American’s privacy in an unprecedented way, or Obama is using big data to protect Americans with minimal invasion of really private information.
Bush’s approach
The controversy over the government’s secret collection of data dates back to the disclosure in 2005 that President George W. Bush had authorized the secret, warrantless wiretapping of conversations between American citizens and foreigners.
Bush took the steps based on presidential authority alone, his power as commander-in-chief to prosecute the war against al-Qaida. Many legal experts thought this warrantless wiretapping was unconstitutional because it had neither congressional nor court approval.
The collection of telephone data that is the source of the current controversy under the Obama administration differs in two ways.
First, the government isn’t listening to the content of the conversation. Instead, it is getting “metadata” on the numbers called, length of the calls, and the location of transmittal towers. The U.S. Supreme Court decided in 1979 that there is no expectation of privacy in this kind of data.
Second, the current collection of the data has the approval of Congress and the Foreign Intelligence Surveillance Court, which is assigned these national security cases.
This difference is viewed by critics of the NSA program as abstract and inconsequential. Many members of Congress seem to know little about the program and the FISA court approves almost every government request. So neither branch of government provides much of a check.
But the participation of Congress and the courts is significant constitutionally. When the Supreme Court struck down Harry S Truman’s seizure of the steel mills, the courts said that president was in the strongest position when he acts with congressional approval.
Gregory T. Nojeim, senior counsel at the Center for Democracy and Technology, compared the Bush and Obama programs this way in an email:
"President Bush's warrantless wiretapping program was more limited in scope and more intrusive in practice. It covered only people who were tied to a terrorist organization and that person could be targeted whether in the U.S. or abroad, and without court authorization. President Obama's ... phone call records collection program covers virtually all calls made within the United States and there need be no tie between the person who makes or receives the call and a terrorist. No court makes any such finding."
Scope of Obama's program
The sheer scope of the Obama era NSA program has attracted much of the criticism. The program appears to collect the telephone metadata for all Americans, even where phone calls are made and received within the United States.
In other words, the government is collecting all of our phone records, even if it is not listening to what we’re saying.
Stewart Baker, a Washington lawyer who held a post in the Department of Homeland Security, has pointed out, however, that the government is analyzing only a small fraction of the data it is collecting.
In a blog post he wrote, “There may be a lot less to the NSA ‘scandal’ than meets the eye.” He said that “minimization rules” bar the government from using the data it collects unless there is a pattern tying a U.S. caller to a foreign source about whom there are suspicions of terrorist connections.
In other words, the NSA is not investigating calls between American citizens in the United States unless they are part of a network of calls that includes a person abroad suspected of terrorist connections.
But those critical of the Obama program, such as the Electronic Frontier Foundation, argue that mapping this kind of information can be as invasive as listening in on telephone calls. The discovery of a series of calls to Alcoholics Anonymous can invade someone’s privacy just as listening in on the calls.
Press mistakes
The confusion about the significance of the recent NSA disclosures is compounded by the apparent overstatements in some of the press coverage.
Britain’s Guardian, which modestly calls its scoop “one of the most explosive national security leaks in U.S. history,” reported, along with the Washington Post, that the government’s PRISM project had “direct access” to the information posted to the servers of internet companies like Facebook and Google.
The denials from the internet providers that the government had direct access may have turned out to be correct, however. The Washington Post changed the wording of the story to remove the claim of direct access.
Rather than direct access, the internet companies apparently respond to specific requests for information from the government. Those requests are reviewed by lawyers for the providers and the information then is apparently placed in a kind of dropbox that the government accesses.
The Post also initially reported that PRISM allowed the government to “track a person’s movements and contacts over time.” In a later version of the story, this was changed to “track foreign targets.” There is a big difference between enabling the government to track Americans based on the internet usage and tracking foreign agents.
The overstatements have been compounded by the quarreling between the Guardian's lead reporter Glenn Greenwald and the Post's veteran investigative reporter Barton Gellman over who got the information first from leaker Edward Snowden.
In addition, Greenwald makes no pretense of objectivity. In an interview with CNN, Greenwald made his point of view clear.
“There is a massive apparatus," he said, "within the U.S. government that with complete secrecy has been building this enormous structure that has only one goal, and that is to destroy privacy and anonymity, not just in the United States but around the world. That is not hyperbole. That is their objective.”
Nojeim said the details of PRISM are still unclear, making it difficult to understand fully. But he added that "the most striking disclosure to me was that agents acting under this program, which was designed to collect the communications of people reasonably believed to be abroad, are aiming only for a 51 percent likelihood that the target of surveillance is abroad. That means our privacy rights turn on a coin flip"
Metadata and privacy
The U.S. Supreme Court ruled in a 1979 case, Smith vs. Maryland, that people do not have an expectation of privacy in their phone records. The court held that a robbery suspect’s rights were not violated when a phone company agreed, without a warrant, to install a pen register to collect the phone calls made to and from the suspect.
But the 1979 decision pre-dated cell phones. And there is a big difference between collecting the phone calls of robbery suspects and the phone calls of every American.
The Supreme Court showed last year in U.S. vs. Jones that it can view advanced technology as more of a threat than earlier simple technology. The court ruled that putting a GPS device on a suspect’s car without a warrant much more invasive – and a violation of the Fourth Amendment -- than putting an electronic beeper on a car.
The justices appeared particularly taken aback when the lawyer supporting the warrantless use of GPS devices said they could be installed on the justices’ cars without violating the Fourth Amendment.
Collecting all Americans’ phone data – including the justices – could look a lot different than allowing a pen register to be installed on one suspect’s phone during an era when no one had ever heard of the internet.
"Smith vs. Maryland isn't the last word and U.S. vs. Jones is the most recent word," said Nojeim. "Five justices on the court signaled that there may be collections of information that are so revealing that they trigger fourth amendment protection. Phone call records alone might not suffice, but NSA also collects financial information and possibly other information that may trip the wire
