The revelation that the government has been collecting the phone records of Verizon customers courtesy of a top secret court order has renewed debate on an issue the United States has been struggling with since 9/11: how to balance national security with citizens' civil liberties and right to privacy. The order made it legal for the telecommunications company to turn over metadata from users' phone conversations, including phone numbers, location, time and duration of all calls. The actual content of the calls is not included.
The blogosphere reacted to the report, and what it means for the public, the future of government surveillance and an Obama administration known for aggressively pursuing leaks:
Andrew Kirell at Mediaite said the Obama administration's program shouldn't come as a surprise to anyone:
In the post-9/11 world, the US government has increasingly found ways to expand its surveillance capabilities through secretive court orders, malleable standards, and blanket laws — seemingly without restraint. This latest NSA news, as broken by the venerable Glenn Greenwald, only serves to confirm what civil libertarians have long suspected: the NSA has repeatedly engaged in massive surveillance of domestic communications of millions of Americans, regardless of whether they are suspected of a crime.
This latest example of Obama overreach is sure to rankle the feathers of conservatives already rightfully disturbed by the DOJ's extensive snooping on journalists and the IRS's intentional targeting of tea party organizations. While many of these same conservatives were rah-rah'ing the expansion of the NSA and United States Foreign Intelligence Surveillance Court during the Bush years, it is a pleasant change to see them finally care about FISA. Welcome aboard.
Gerg Weiner of Library of Law and Liberty said that our political culture's obsession over blame makes it difficult for leaders to strike a balance between national security and privacy invasion:
[W]hen the Obama Administration first met to review the NSA snooping program, it almost certainly went down like this: "Mr. President, this program has ensnared the following plots. Without it, they would have gone forward. Do you want to be responsible for the attacks that proceed because this program was canceled?"
Setting aside the question of whether the plots could have been otherwise foiled, any president is going to feel placed in an impossible position by the challenge—except, that is, a president willing to treat the public like adults. Since we seem bent on treating presidents like father figures anyway, why not look to one for a teachable moment, as in: "The world is big and scary, and the only way I can protect you against every eventuality is to limit your liberty to a degree that ought to be unacceptable to us both. So let's strike a grown-up bargain: I don't attempt to invade your lives and you don't hold me responsible for that which I can't control without invading your lives."
James Joyner of Outside the Beltway said it all depends upon whether or not the government is truly collecting mass amounts of data, or if they are using the court order to get around obtaining warrants to monitor specific individuals:
Despite my libertarian leanings, I'm not convinced this is outrageous. As with the Bush program, it strikes me as potentially defensible depending on how it's used. That is, I have no inherent problem with pure "data mining." If all the government is doing is collecting mass amounts of phone record data and then sifting it using computer algorithms for patterns that comport with known terrorist habits, I'm not sure why that's problematic. Nobody's privacy is meaningfully invaded if that's all that's happening. If, on the other hand, individuals are being targeted without reasonable suspicion and the mass collection is a way to get around the requirement to prove the need for a warrant, then this is outrageous and unconstitutional. And, of course, even if the intent is the former, the mere possession of this information leads to the possibility of rogue agents abusing it. But that may well be outweighed by the intelligence value.
Gregory Ferenstein of Tech Crunch said he has typcially been skeptical of a real threat to privacy posed by government surveillance programs, but recent events have caused him to rethink:
Late last year, I wrote about a few actual harms that citizens should be worried about from these types of big-data spying programs. Blackmailing citizens critical of the government seemed like a distant hypothetical, until we learned that the IRS was auditing Tea Party groups and journalists were being wiretapped. Nefarious actors inside the government like to abuse national security programs for political ends, and that should make us all (even more) suspect of government spying.
Some government secrecy is necessary for national security purposes. But it's justified based on our trust that the information will be used with care. With every passing scandal, the justification for these types of programs becomes more and more questionable.
Andrea Peterson of Think Progress said the Verizon monitoring may not be the extent of the government's communications surveilling, as it may be collecting email data as well:
New revelations that the NSA has continued to secretly suck up information associated with domestic phone calls are not only a reminder that Bush era surveillance programs live on (albeit with slightly more judicial oversight) under the Obama administration — they are an opportunity to consider the very real possibility that the NSA is also collecting a similar treasure trove of non-communications content data related to email. Information like email senders and recipients and time stamps is often seen by the government as analogous to the type of phone metadata Verizon was ordered to turn over and under the Foreign Information Surveillance Act (FISA) re-authorization, that data and possibly more could be gathered with the same type of secret order.
The Administration won't reveal how many Americans' emails the NSA has collected and reviewed without a warrant. This implies that FISA has been used to intercept the content of email communications on a broader scale than currently known and may be evidence that the agency would not have a problem with the dragnet collection non-content data. And Members of Congress have said the bulk data collected by the NSA under the Patriot Act go further than the public knows, or would be comfortable with. Sen. Ron Wyden (D-OR) and Sen. Mark Udall (D-CO) wrote in 2012 letter to Attorney General Eric Holder, "We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act."
Lydia Depillis of the New Republic disagreed, however, saying the nature of the internet makes it less likely to provide user information to the government, because it is less obliged to comply with regulations:
The telecom industry has always had a cozier relationship with government, dating back to its days as a regulated monopoly called Ma Bell. It's used to cooperating with requests from officials, since it used to be required to as a condition of its privileged status, and still needs to work with agencies like the Federal Communications Commission for access to public airwaves. That's why public interest advocates tend to complain about regulatory capture: There's a well-oiled revolving door between the big telecom companies and senior government positions (conveniently, Verizon's chief security officer used to work for the FBI). By contrast, the Internet is a less regulated realm—partly because it's newer—and zealously guards its freedom. Internet companies tend to exchange staff with groups like the Electronic Frontier Foundation and the Center for Democracy and Technology, instead of regulatory agencies and the security state.
Joshua Foust offered a few quick thoughts on why public outrage shouldn't be directed at the Obama administration, and why nothing will actually change now that the public knows about the information collection:
All of the opprobrium you should feel at the government's ridiculously broad surveillance powers needs to be directed at CONGRESS, which keeps approving them while voting they stay secret.
No one will respond to this by voting out their representatives or Senators during the next election because, despite the temporary outcry, Americans (including the Congressmen and Senators who tried to add amendments) don't care about this very much.
None of you will stop voluntarily giving Verizon (or AT&T, Sprint, T-Mobile, etc.) your personal information out of the fear that they might be legally compelled to hand it over to an intelligence agency through a legal process. Because, at the end of the day, you really don't care about this very much either. At least, you don't care enough to go out of your way to change it.
Ed Morrissey of Hot Air explored the possible administration reactions to the Guardian report, concluding that it will most certainly look into the source of the information:
Of course there will be a leak investigation. After all, there was a leak, no? Leak investigations in and of themselves aren't all that controversial — it's the method of investigation that has been the scandal. [Pete] Williams reports that Eric Holder told him that he's not interested in prosecuting reporters as leakers, which is the opposite of what the Holder-approved warrant on James Rosen claimed in three different federal courts, which named him as a co-conspirator in espionage in order to gain unlimited access to his e-mail and other communications records. On the AP case, the DoJ bypassed the federal regulations covering media records seizures, which is why someone on the Morning Joe set sardonically comments that this isn't likely to make reporters feel any better.
Will the DoJ name Glenn Greenwald a spy in their warrant when they get around to investigating the leak? After all, the leak put counter-terrorism strategies into the open, which is the core of the "aiding the enemy" construct in the Bradley Manning trial, and the nature of the material is much more sensitive than Rosen sought in the Kim case. Stay tuned, and maybe Glenn should start thinking about covert communication strategies, too.
- Read Brad Bannon: Obama Executive Overreach Runs Wild With Verizon Phone Record Collecting
- Read Susan Milligan: Michelle Obama Wins Showdown with Heckler Ellen Sturtz
- Check out U.S. News Weekly, now available on iPad