NSA has your phone records; 'trust us' isn't good enough

NSA has your phone records; 'trust us' isn't good enough
Posted 5/11/2006 10:55 PM ET
The government is secretly collecting the phone records of millions of Americans.

Stop and think for a moment about the meaning of that simple, startling fact, exposed Thursday in a remarkable report by USA TODAY's Leslie Cauley.

In the narrowest interpretation, of course, it is benign. Possibly even helpful. It means that the National Security Agency (NSA) — the Pentagon-run spy agency that monitors communications — is using a new tool to hunt terrorists: Monitor phone traffic to identify threats and stop them.

This is all it means, President Bush told the public Thursday in a brief appearance aimed at quelling the instant outrage provoked by the story. He assured Americans that their civil liberties were being "fiercely protected" and that the government was "not mining or trolling through the personal lives of millions of innocent Americans."

In other words, never mind appearances. Trust us.

Well, that is not all it means. Nor can the president's promise to protect privacy be reliably kept.

The fact that the government is trying to track (but not wiretap) every call you make and every call you receive — at home or on your cellphone is, to say the least, disturbing.

It means that your phone company (if you are a customer of AT&T, BellSouth or Verizon) tossed your privacy to the wind and collaborated with this extraordinary intrusion, and that it did so secretly and without following any court order.

That is, unless you're lucky enough to be served by Qwest, the one major phone company that had the integrity to resist government pressure.

It means that unless public opposition changes the government's course, this database will be compiled, updated and expanded into the indeterminate future, through countless administrations with who-knows-what interests and motives.

Only the most naive and unsuspicious soul could trust that it will remain safe, secured and for the eyes only of those hunting terrorists.

One need look no further than past abuses of power to be uncomfortable about the future. Richard Nixon during Watergate. Lyndon Johnson during the Vietnam War. J. Edgar Hoover during his long reign as FBI director.

Even assuming that the Bush administration's motives are pure, and that this program merely looks for patterns of calls that could reveal terror networks, it raises a number of troubling questions:

Is it legal? Bush insists it is, but that's questionable. The 1978 Foreign Intelligence Surveillance Act requires a court order to gather a person's current phone records. A 1934 law requires phone companies to protect customers' privacy. And the Fourth Amendment forbids "unreasonable searches and seizures."

Is it useful? Taken as a whole, such a database is of dubious utility. U.S. intelligence-gathering agencies are already suffering from an abundance of raw information and a dearth of good intelligence. Looking for suspicious patterns among billions of phone numbers seems like the ultimate search for a needle in a haystack.

Is it foolproof? These types of databases invariably have errors. The federal terrorist "watch list," which is used to screen airline passengers, has ensnared a number of innocent travelers — among them Sen. Edward Kennedy, D-Mass., and a 23-month-old toddler — whose names are similar to, or the same as, suspects on the list. Once you're mistakenly targeted, the error can be nearly impossible to fix and your life can be turned upside down.

Will it be abused? Maybe not at first. Over time, however, this vast quantity of data is a potentially irresistible tool for government officials who want to zero in on individual Americans.

At the very least, one can imagine this information being used by law enforcement agencies trying to trace people who have attracted their attention but about whom they don't have enough information to justify a court order. Or to look for whistle-blowers who have leaked sensitive information to reporters.

Consider what happened in the 1960s and '70s, the last time federal law enforcement and national security agencies launched mass snooping expeditions against U.S. citizens. The FBI, which became a clearinghouse for the data, sent them to the CIA, the Justice Department and the IRS, where some of the data were used in tax probes.

"Information that should not have been gathered in the first place has gone beyond the initial agency to numerous other agencies and officials, thus compounding the original intrusion," concluded a committee chaired by Sen. Frank Church, D-Idaho, which investigated and reported on the abuses in 1976. The amount of information was "so voluminous," it was difficult "to separate useful data from worthless detail."

NSA's technological capabilities, the Church Committee wrote, are a "sensitive national asset" valuable to the national defense. Even so, it warned, "if not properly controlled ... this same technological capability could be turned against the American people, at great cost to liberty."

The panel's conclusions about NSA are as valid today as they were then.

The phone record program serves as a powerful reminder of how, in a digital age, records can be compiled and analyzed in ways you are unaware of.

And combined with a separate NSA program (revealed in December by The New York Times) to eavesdrop without warrants on international calls from the USA, it raises the question of what other secret and constitutionally suspect programs the Bush administration might still be shielding.

Air Force Gen. Michael Hayden, who headed the NSA for six years and is now Bush's nominee to be CIA director, is a master of evasion. Speaking in January about the international eavesdropping, he said the program is not a widely cast "drift net" but is narrowly "focused" and "targeted."

Perhaps. But, at the time, he was fully aware of a program that is many of the things the other is not. A 2006 version of the Church Committee is needed to investigate the anti-terror programs created in the scary aftermath of 9/11, and the Senate should hold up Hayden's nomination until all its questions are answered.

Creating a huge, secret database of Americans' phone records does far more than threaten terrorists. It is a deeply troubling act that undermines U.S. freedoms and threatens us all.

The White House declined to provide an opposing view to this editorial.