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There Goes My Invitation to Amsterdam

I see that over at Hit & Run, Julian Sanchez has a problem with an article I wrote for the June 5, 2006 National Review (“Inventing Abuse”) – enough of a problem to merit two posts on its alleged flaws. In the first place, Sanchez objects to my invocation of Smith v. Maryland as a rebuttal to claims that the NSA phone-data program described in a May 11, 2006 USA Today article violates the Fourth Amendment. I wrote, “In Smith, the Court ruled that information voluntarily provided to third parties is not protected by the Fourth Amendment.” Sanchez writes that he’s “always had some issues with” the Court’s reasoning in Smith. His disagreements with the Supreme Court aside, he utterly fails to explain why I was wrong to argue that, according to Court precedent, there is no reasonable expectation of privacy when it comes to phone records. That is, after all, what the Court held in the case.

Sanchez has some interesting things to say about why he thinks, were this case argued before the Court today, the Justices should rule that the Fourth Amendment should protect phone records. But I said nothing in my article about the quality of the Court’s reasoning. I wrote, “On the question of whether this program has violated anybody’s constitutional right to privacy, there seems to be broad agreement that the answer is no” – a statement I based primarily on the numerous times Smith v. Maryland came up during my research for the article. Perhaps I should have added, “… with the exception of Julian Sanchez of Reason magazine.” Of course, I was not aware of his objections at the time.
In the second place, Sanchez writes, “Someone like Spruiell is going to say (does, in fact, say) this is all moot unless we can point to some specific case in which information gathered by this top-secret program has been abused.” But that’s not what I wrote. I wrote that, because their legal and political arguments against the actual program are weak, privacy advocates have invented “all kinds of hypothetical ways in which the database could be abused” in order to strengthen their case, even though they “have yet to provide any evidence that it has been abused in the past, or to give a compelling reason for believing it will be abused in the future.” By suggesting that the NSA is entering random Americans’ phone numbers into Google in order to snoop on their calls to gay chat lines and divorce lawyers, Sanchez makes my point for me.
The way the program works, as far as we can tell from what’s been reported, is like this: Say U.S. troops capture an al Qaeda hideout in Afghanistan and find a laptop with 25 American phone numbers. Without this database, any threat analysis that results from this intelligence is bound to be painstakingly slow. The NSA has to get a court order for the phone records of these 25 numbers, because it is now undertaking a targeted investigation. In those phone records, perhaps analysts find as many as a dozen leads – more subpoenas, more phone records – it might take them months to determine whether there are any links or patterns in these phone records that indicate terrorist activity.
With a database of all the phone records in the United States, however, a computer can search the nation’s communications activity for links and patterns much more efficiently, allowing analysts to focus on just a few suspect cases. Analysts do not have to scrutinize the phone records of every number in the captured laptop. If anything, fewer people are snooped on in the process.
At least this is how the database works according to news reports and various members of Congress who have been briefed on the program. This is opposed to Sanchez’s version, in which the NSA mainly uses the database to create phone-sex dossiers on dysfunctional suburban couples. As Heather Mac Donald has written, “This is a hard rhetorical technique to counter. One must defend not only what a program is, but also what it isn’t.”
In the third place (we’re now in the second post Sanchez wrote about my article), Sanchez finds it quite perplexing that I would use the following quote from former deputy attorney general George Terwilliger:

“I think it’s fair to say that the statutes contemplate the transfer of this generic type of data much more on a case-by-case rather than a wholesale basis,” he says, meaning that the statutes call for a court order only in cases when the government is making a targeted request for information. But, he adds, “I don’t see anything in the statute that forbids such a wholesale turnover.”

Sanchez reacts to this quote with a level of scorn that is completely bewildering. What Terwilliger meant, as I recall, is that the federal statutes that govern electronic privacy, like the Stored Communications Act, were written with individualized investigations in mind. The government is legally entitled to these phone records once it has a suspect – all it usually takes is a subpoena. But what if the NSA needs hundreds of millions of phone records just to identify the suspect? It’s difficult to imagine that in 1986 Congress could even imagine this scenario, let alone intend to proscribe it. On the contrary, the SCA includes a section that permits the phone companies to share these types of records as long as they are authorized by the attorney general, and AT&T has already indicated that it was.
At this point, I believe I’ve addressed Sanchez’s specific criticisms of my article – from here on, he gets into the question of the inherent authority of the executive to gather intelligence as part of his Article II responsibilities. Others with far more expertise than I possess have addressed that point as it relates to the terrorist surveillance program, and I’ve already written more than I intended here. I do not think Sanchez successfully refutes any of the constitutional arguments. I do think he succeeds in displaying the characteristics I attributed to critics of the NSA database and government data-mining in general – namely, a willingness to exaggerate the potential for abuse in order to buttress a weak privacy claim.

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