Phone Record Gathering Story Blown Out of Proportion

by Andrew C. McCarthy

Now, we begin to see the wages of having an administration that abuses its awesome powers, then, as night follows day, stonewalls and misleads Congress and the public. Crucial national security measures, which operate on the forgiving assumption that government officials will conduct themselves honorably, are put at risk.

The Washington Post publishes a wildly exaggerated report this morning about the government’s collection of telephone records for national security purposes. Mind you, I said collection of telephone records, not wiretapping of telephone conversations, a critical distinction. The story sensationally proclaims that the National Security Agency (NSA) “appears to be collecting the telephone records of tens of millions” of Americans – records of cross-border as well as domestic calls.

With stories swirling around about the Obama administration siccing the IRS on the Tea Party and abusively spying on journalists, this revelation obviously strikes a disturbing chord. But then, as we read further, we learn that the telephone record gathering is proceeding under court orders, and that the surveillance actually goes back to 2006.

The Post has a propensity to repeat uncritically the hysterical claims of anti-anti-terrorism activists at outfits like the Brennan Center (“This is a truly stunning revelation,” shrieks one Brennan official). In truth, though, there is nothing new or groundbreaking about the surveillance in question. The Post solves this inconvenience by underscoring that the record-collection is happening under … wait for it … the Patriot Act – two words that not only roil Bush-deranged Democrats but also make some factions of the Tea Party see red.

Here is what they don’t tell you. Telephone record information (e.g., the numbers dialed and duration of calls) is not and has never been protected by the Fourth Amendment. The Supreme Court held as much in its 1979 Smith v. Maryland decision. Understand: the phone record information at issue here is very different from the content of telephone conversations. Because the latter involve higher privacy expectations, they are heavily regulated under not only the Fourth Amendment but both Title III of the federal penal code and the Foreign Intelligence Surveillance Act (FISA). Under these laws, the government is not permitted to access communications content absent court authorization based on probable cause either that a crime has been committed or that the surveillance target is an agent of a foreign power (such as a terrorist organization or a hostile government).

(Because the Post’s report relates to information the government is gathering pursuant to court order, I am not going to rehash the vigorous debate we had circa 2004-2006 over the NSA’s warrantless wiretapping and the president’s authority to seize information without judicial authorization. There is no reason to believe that is going on.)

Unlike the content of your communications, you have no expectation of privacy in your telephone activity records. If you think about it for a second, you know you don’t. If there were a mistake on your phone bill – for example, if you were charged for a long-distance call you didn’t make — you would expect to be able to call your phone company and have the problem addressed. That is because you understand that, when you make a call, this information is not secret: your phone company keeps records of whom you called and how long the call lasted. A phone record is, by nature, a record of information shared with third-parties. It is not like personal papers and other personal items you keep in your home – items the government may not search without a judicial warrant (except in certain circumstances not relevant to this discussion). 

By gathering massive amounts of telephone traffic information, the government is able to establish phone call patterns, which is vital for mapping terrorist organizations. Without this, you cannot have preventive, intelligence-based counterterrorism – i.e., counterterrorism whose goals are to identify terror cells before they strike and to stop atrocities from happening. To be sure, Congress could deny the government this kind of information by statute. If lawmakers did that, however, we would be in a September 10 counterterrorism paradigm – i.e., rather than prioritize prevention, we would be contenting ourselves to investigate and prosecute only after attacks have occurred and Americans have been killed.

Can the kind of information gathering the government is doing – and has been doing in this fashion since 2006 – be abused? Could the Obama administration use its national-security authorities as a pretext for spying on Americans? Of course it could. All information collecting can be abused. It may sound trite to point out that elections have consequences, but it really matters who we elect to run the executive branch.

And on that score, contrary to what the Post suggests, and what some anti-anti-terrorism agitators on both sides of the political aisle are sure to say, the potential for abuse is not caused by the Patriot Act. It would actually be easier for the government to get the information it is collecting by a grand jury subpoena than under the Patriot Act.

With grand jury subpoenas, there is essentially no court supervision. When I was a prosecutor and I wanted information, I reached into my desk, pulled out a subpoena, wrote what I wanted on it, and sent an FBI agent to go get it. I did not need to go to a court. A judge would get involved only if the person, business, or institution served with the subpoena tried to get the subpoena quashed – which was very rare, especially in the case of third-party records that do not implicate constitutional privacy concerns.

By contrast, Section 215 of the Patriot Act (which I wrote in support of when it was reauthorized a few years back) requires the government to go to the FISA court for permission to get business records, including phone records. It is true that the court’s role is largely ministerial – again, because there is no expectation of privacy and no Fourth Amendment protection, there is no need for the judge to make a probable cause finding. But that does not mean making the government go to the judge is inconsequential. The representations the government makes about the need for the records must be true – if they are later found to be false, there will be hell to pay.

Moreover, requiring the government to go to a FISA judge makes it far more straightforward for Congress to conduct oversight to ensure that the Justice Department is not abusing its authority. As a practical matter, there is no way Congress could efficiently review how thousands of prosecutors conducting tens of thousands of investigations across the country are using their ordinary (but capacious) law-enforcement power in issuing countless subpoenas.

Remember too: it is simply an inevitable fact that, in every investigation, whether done for national-security under FISA or under ordinary law-enforcement procedures, the government always gathers more information than it needs – including lots of information about innocent people. If I subpoena the drug dealer’s phone records, I’m going to get information about all his daughter’s calls to her girlfriends. That, unavoidably, is how the process works. Theoretically, I could pry into what the girlfriends are up to, but why would I want to do that and how would I have time to do it even if I were so inclined?

The main point here is that the information at issue is not private. Again, practically speaking, the government cannot gather the information it needs to protect us without coincidentally collecting lots of information about innocent people. A subpoena can’t direct the phone company, “Produce only the records of the conspiratorial phone calls.” The investigators have to sift through all the records to find alarming connections and patterns. But what they are sifting through is not highly personal information; it is information we all know is already in the hands of third-parties.

The easy solution here is to couple intelligence gathering with exacting congressional oversight. The Justice Department, the NSA, and other appropriate executive branch agencies must be permitted to keep collecting telephone record information. Their highest responsibility is to protect the nation, and they “cannot connect the dots,” as we demand that they do, unless you let them have the dots in the first place. Nevertheless, because there is great potential for abuse – for spying on ordinary Americans or, more likely, political opponents of the administration – there must be very exacting congressional oversight.

This is why it’s so critical to have a trustworthy president and administration – including an attorney general Congress can trust to provide truthful, accurate and complete information. It is not unreasonable to conclude that the Obama administration – with its serial lawlessness, authoritarian abuses of power to harass dissenters, and pattern of misleading and stonewalling Congress – has so grossly violated the public trust that it is unfit to exercise the executive’s awesome investigative authorities. It must also be observed, though, that those authorities exist because they are necessary to our security.

The problem here is not government power. It is the government officials we’ve elected to wield it.