If the National Security Agency’s bulk-data program expires, the coroner should conclude that it was “death by bumper sticker.”
Rarely has a controversial government program been so fiercely debated and so poorly understood. Authorized by soon-to-expire Section 215 of the Patriot Act, it has been brought to the edge of extinction by a couple of simple but inaccurate phrases, including “listening to your phone calls” and “domestic spying.”
You can listen to orations on the NSA program for hours and be outraged by its violation of our liberties, inspired by the glories of the Fourth Amendment, and prepared to mount the barricades to stop the NSA in its tracks — and still have no idea what the program actually does. That’s what the opponents leave out or distort, since their case against the program becomes so much less compelling upon fleeting contact with reality.
The program involves so-called metadata, which means information about phone calls, but not the actual content of the calls — things like the number called, the time of the call, the duration of the call. The phone companies have all this information, which the NSA acquires from them.
What happens next probably won’t shock you, and it shouldn’t. As Rachel Brand of the Privacy and Civil Liberties Oversight Board writes, “It is stored in a database that may be searched only by a handful of trained employees, and even they may search it only after a judge has determined that there is evidence connecting a specific phone number to terrorism.”
The charge of domestic spying is redolent of the days when J. Edgar Hoover targeted and harassed Martin Luther King Jr. Not only is there zero evidence of any such abuse, it isn’t even possible based on the NSA database alone. There are no names with the numbers. As former prosecutor Andrew C. McCarthy points out, Whitepages.com has more personal identifying information.
As former prosecutor Andrew C. McCarthy points out, whitepages.com has more personal identifying information than the NSA database.
The NSA is hardly a rogue agency. Its program is overseen by a special panel of judges, and it has briefed Congress about its program for years.
In the context of all that is known about us by private companies, the NSA is a piker. Take the retailer Target, for example. According to the New York Times, it collects “demographic information like your age, whether you are married and have kids, which part of town you live in, how long it takes you to drive to the store, your estimated salary, whether you’ve moved recently, what credit cards you carry in your wallet and what Web sites you visit.”
Of course, the Fourth Amendment applies to the government, not private entities like Target. The amendment protects against unreasonable searches and seizures of our “persons, houses, papers, and effects.” If the NSA were breaking into homes and seizing metadata that people had carefully hidden away from prying eyes, it would be in flagrant violation of the Fourth Amendment. But no one is in possession of his or her own metadata.
Even if the NSA didn’t exist, metadata would be controlled by someone else, the phone companies. The Supreme Court has held that you don’t have an expectation of privacy for such information in the possession of a third party. One frightening way to look at mail delivery is that agents of the state examine and handle the correspondence of countless of millions of Americans. They aren’t violating anyone’s Fourth Amendment rights, though, because no one expects the outside of their envelopes to be private.
There are legitimate criticisms of the NSA program. It currently hangs on vague phrasing in the Patriot Act. Congress should make it unmistakable that it is authorizing exactly what the NSA is doing. But the program doesn’t deserve the ignominy that has it in such political peril. The House has passed a reform that might render the program unworkable, and the Senate hasn’t yet been able to act. It is hard to match the power of a bumper sticker.