Thursday, May 11, 2006

Creepy, Invasive, Dangerous and Un-American

The BIG story today - as shown by a snapshot of where it seems every singl;e blogger has a post on the subject - is the revelation in USA Today that the NSA has been conducting a massive data trawl of domestic phone records. And when I say massive, I mean "makes the Death Star look like a hotwheels model".

Most of the wingnuts are in full sycophancy mode, decrying yet another leak that "damages national security". It is difficult to see what their justification for this tack is though - the kind of software pattern and anomaly recognition software likely employed would actually pick out those who change their patterns because of this "leak". (In other words, the leak will maybe catch a few terrorists which brings up the interesting possibility of a deliberate leak with just that aim in mind.) And the others will just establish a new pattern of calls to be recognised. I mean, what are the supposed terrorists going to do - switch to carrier pigeons?

James Joyner has a more measured rightwing response and he is clearly a wee bit worried. He points out that the program doesn't record calls, just phone numbers, and isn't the kind of domestic surveillance that the NSA is technically prohibited from doing. Even so, he reserves the possibility of changing his mind should abuses come to light.

Noah Shachtman at DefenseTech has words of caution for Joyner:
Now, some people might find some small measure of comfort in the fact that this particular NSA effort is only looking at calling patterns -- not the contents of the calls themselves. Don't be. Back in January, we learned that this data-mining is directly leading to a "flood" of tips, given to the FBI, virtually all of which have led "to dead ends or innocent Americans."
Does that count as "abuse", James?

Sean Hackworth, The American Mind, is another rightwinger and he has even greater misgivings than James Joyner:
A database containing all that information without a court order is unacceptable. It's ripe for abuse. One thousand secret FBI files fell into the hands of cronies during President Clinton's term. A record of every phone call made would offer too much temptation for some overzealous or unethical flack...the idea the NSA has a record of all my phone calls is creepy.
Which in itself is an interesting line of thought. The NSA's aim was to capture every phone call. Now, I am pretty sure that groups like the Minutemen are on the NSA's watch list in case they turn violent - which means it is pretty much a dead certainty that Michelle Malkin's phone records are of especial interest to the Feds. Still feel the NSA is just doing its job, Michelle?

Finally, as is often the case Glenn Greenwald provides some of the most perceptive commentary on the issue. Glenn points out that one phone company, QWest, declined to help the NSA without a warrant from the FISA court and that the NSA didn't go get said warrant because it didn't think FISA would grant one. Glenn writes:
This theme emerges again and again. We continuously hear that the Bush administration has legal authority to do anything the President orders. Claims that he is acting illegally are just frivolous and the by-product of Bush hatred. And yet...each and every time the administration has the opportunity to obtain an adjudication of the legality of its conduct from a federal court (which, unbeknownst to the administration, is the branch of our government which has the authority and responsibility to interpret and apply the law), it does everything possible to avoid that adjudication.
The same thing has been seen in the stonewalling and dropping of the investigation into the ethics of previous NSA wiretapping. The administration won't give its own Dept. of Justice lawyers clearance to see needed records because it is scared stiff those lawyers will find it acted illegaly.

Glenn also has the heart of the problem:
when the NSA scandal first broke, the administration’s principal political defense was to continuously assure Americans that they were eavesdropping only on international calls, not domestic calls. Many, many Americans do not ever make any international calls, and it was an implicit way of assuring the heartland that the vast bulk of the calls they make – to their Aunt Millie, to arrange Little League practice, to cite just a few of the administration’s condescending examples – were not the type of calls being intercepted. The only ones with anything to worry about were the weird and suspect Americans who call overseas to weird and suspect countries. If you’re not calling Pakistan or Iran, the Government has no interest in what you’re doing.

That has all changed. We now learn that when Americans call their Aunt Millie, or their girlfriend, or their psychiatrist, or their drug counselor, or their priest or rabbi, or their lawyer, or anyone and everyone else, the Government is very interested. In fact, they are so interested that they make note of it and keep it forever, so that at any time, anyone in the Government can look at a record of every single person whom every single American ever called or from whom they received a call. It doesn't take a professional privacy advocate to find that creepy, invasive, dangerous and un-American.
Or as one of James Joyner's commenters put it:
MAYBE all the NSA is doing with those records, today, is statistical analysis of the data set of calls. But given the clear assertions of unlimited prerogative by the President and his Attorney General, there’s every reason to think that if they wake up tomorrow and decide it would be a good idea to do something far more invasive with those records, they’d consider it well within their purview.

And if they woke up yesterday and had the same thought, they sure aren’t going to announce it to us.
I am of the belief that, in time, the news will surface that they have indeed already decided to do something more invasive with those records and decided not to tell us.

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