Even More Thoughts on NSA Phone Database

Over a day has passed since USA Today reported on the NSA call records database. (It is a new, important story because the public knows more of the details and the extent of phone company cooperation.) I've dulled my fervor. I'm going to take back one sentence. In my first post on the story I wrote, "A database containing all that information without a court order is unacceptable." Given Orrin Kerr's reference to Smith v. Maryland there are constitutional situations where such a database is acceptable.

In my mind this program is different from the program discovered by the NY Times last December. In that case one end of the call is international. In NSA monitoring instances will come up where one end of a monitored international call will be in the U.S. Since people calling into the U.S. from overseas have no presumption of fourth amendment rights I don't see that surveilence as unreasonable. It would be silly if the NSA were only allowed to listen to the international end of the call or ignore anything pertinent found on the domestic side. Thus I am not bother by that program.

Thankfully the blogosphere is working up different angles and providing insight to help me better evaluate this issue.

My main concern is with fourth amendment protections against "unreasonable searches and seizures." Orrin Kerr, no Bush syncophant writes, "The Fourth Amendment issues are straightforward. It sounds like the program involves only non-content surveillance, which means that it presumably doesn’t implicate the Fourth Amendment under Smith v. Maryland."

That doesn't mean any law was broken. In a later post Kerr writes:

My still-very-tentative bottom line: The companies were probably violating the Stored Communications Act by disclosing the records to the NSA before the Patriot Act renewal in March 2006, although the new language in the Patriot Act renewal at least arguably made it more likely that the disclosure was legal under the emergency exception.

Jessical McBride made a great point on her radio show last night. She mentioned all the data the IRS has on every man, woman, and child who has ever filed a tax return. They have a lot more detailed and personal data than what's in the NSA phone records database. Yet there are few complaints. On her weblog McBride devulges the dirty little secret that the MSM data mines when researching stories. As for the ACLU Stop the ACLU points out the civil liberties organization has a data mining problem on its not-so-clean hands.

Steven Taylor wonders why the NSA needs all that phone data. Steve Verdon has a possible explanation involving Bayes' Theorem. In short, the filter needs to trained so it notices the bad guys and not the good guys.

Glen Greenwald went overboard with his claim that President Bush has crowned himself king and can do anything he wants. He writes, "The attribute which most singularly defines this administration is its insistence that our Government is based on unilateral and unreviewed Presidential Decree." If that's the case then Qwest couldn't opt out of the NSA program. Bush would have forced the company to send its call data to the NSA. That didn't happen. In fact the government is paying Verizon, AT&T, and BellSouth. Odd for an authoritarian to compensate its victims. Glen does remind us that the NSA is now pointing its ears at the United States, something it never was intended to do. The NSA was created to spy on the Soviets.

Rep. Edward Markey said, "The NSA stands for Now Spying on Americans." Not quite Congressman. Stephen Spruiell reminds us, "Reporter Leslie Cauley makes clear that this program doesn't monitor the actual content of domestic communications." And because the database is so big the vast majority of it will never appear before a spook's eyes. It's not spying on Americans, but it's close. That means we must be very wary of who handling the data.

On Qwest bucking the other telephone companies Steven Taylor writes,

If this program is wholly legal and if the NSA is fiercely protesting the privacy of American citizens, then why not obtain proper legal authorization in this process? Even more to the point: why balk at obtaining authorization when asked to do by Qwest?

The most troubling aspect of all of this is that there appears to be a great reluctance on the part of the administration to simply establish proper oversight of these programs as well as a propensity to eschew adequate usage of established legal processes.

To wish for any US administration to do so is hardly asking for too much.

What I see is an administration wanting to do all it can to protect the nation but unwilling to ask Congress to pass the appropriate legislation. I would like to know how classified legal changes were handled in the past. I'm sure since the establishment of the CIA, NSA, and other spying agencies past Presidents and Congresses had to deal with similar issues. Those debates probably included information that the Soviets and other enemies would have loved to learn. For years the government didn't even acknowledge the NSA's existence.

I'm already tired of people like John Hinderaker who state it's only liberals who have issues with this lastest spying news. I'm a strong Bush supporter, but I'm no knee-jerk cheerleader. Knowing a government agency has a record of every phone call I've made since Sep. 11, 2001 discomforts me. Questioning the bounds of government is healthy.

Shoving a poll at me telling me the American public doesn't mind the call record data base doesn't move me one bit. Public opinion has no bearing on a program's legitimacy or value. Bush defenders who use the poll for that are engaged in faux populism, populistic stylings to gain political advantage.

My bottom line: The database doesn't violate the fourth amendment since it only collects information about calls not the calls themselves. However, laws may have been broken. Even though the agency appears to be acting in a constitutional manner we should be a little disturbed the NSA's mission now includes monitoring the homeland. The Bush administration has done a poor job working with Congress to craft legislation and explaining themselves about oversight. I am not so much worried about the current administration as I am future ones--think Hillary--especially when the Islamist War has ended.

I have one final point. An interesting angle that can't be discounted is the timing of the USA Today story. Gen. Michael Hayden, former head of the NSA is nominated to run the CIA and magically this story appears. Coincidence? Uh uh. For good or ill someone is trying to bury Hayden's nomination.