Seth at CCK has an interesting post on the data mining that the NSA is supposedly playing at "with the phone records of millions of Americans," to quote USAToday. Seth's source presents an argument that this data mining cannot be useful. I don't know how to evaluate the argument, and I am guessing that neither does Seth. I have posted on this topic myself. But it now appears that Seth and I may have been hot on the trail of a snipe. From USAToday:
Last Thursday, USA TODAY reported that the NSA has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, BellSouth and Verizon, people with direct knowledge of the program said. One of the nation's major telecommunication companies, Qwest, declined to participate, the story said, a fact confirmed Friday by Herbert Stern, the lawyer for former Qwest CEO Joe Nacchio.
That's the original story. Now this:
BellSouth said in a statement that it doesn't contract with the National Security Agency to supply customer calling information."As a result of media reports that BellSouth provided massive amounts of customer calling information under a contract with the NSA," it said Monday, "the company conducted an internal review to determine the facts. Based on our review to date, we have confirmed no such contract exists and we have not provided bulk customer calling records to the NSA."
I believe it is true that a third carrier originally named by USAToday has announced that it did not, in fact, give any data to the NSA. So at this point we don't know whether the NSA really did obtain the phone data described in the original story, let alone what they did with that data.
Let me make a few comments on the general story:
1. The data that the NSA supposedly obtained consists of massive records of phone calls: which numbers connected with which numbers. This data is already collected and mined by the carriers. It is shared with a number of affiliates, including overseas firms. It is probably not only legal for the carriers to share it with the government, it is probably obligatory under law.
2. Warrants are required in principle only where there is a reasonable expectation of privacy. At present there can be no such expectation regarding this data. So unless some statute explicitly requires the government to get a warrant for this type of information, it doesn't look like there can be any legal problem for the NSA. Moreover, monitoring the global communications net for terrorist activity doesn't seem to be the kind of thing for which warrants are either necessary or possible. It would be like asking for probable cause before turning on a radar device.
3. The NSA clearly monitors international communications for signs of terrorist activity. We know this and so do the terrorists, thanks to the Washington Post. No one seems to think that a warrant is required when listening to one Al Qaeda boss in Iraq calling another in Iran (if he has any minutes left in his account). Suppose one of them hangs up and calls a number in Jersey. That's a legitimate constitutional question, but I think that a warrant requirement in such a case is silly. I say listen in. Now what happens if the Jersey number reconnects to a number in Saint Paul? Is a warrant now required? I think so, but only after the fact. The trouble is, I can't imagine any President (with the obvious exception of Jimmy Carter) actually backing off if the warrant were denied. The President is not going to let the next terrorist attack proceed if he can find it and stop it.
4. When a known terrorist does call a number in the U.S., it might be nice to know what other numbers regularly connect with the domestic target. I see nothing wrong with the NSA having access to that data. When the NSA wants to begin tapping the phones of those other numbers, just on the off chance that one of them is part of the terrorist network, at that point judicial oversight is in order. I'm guessing that legislation hasn't caught up with this stuff yet, and Congress ought to get busy.
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