A frequent contributor to the comment section, Herb Van Fleet, wrote in to express his opinion on my piece on President Obama’s NSA reform speech last week. Herb’s objections to what the NSA is doing are shared by many folks on the right and on the left. This is one issue that cuts across party lines. Here is my response:
Perhaps you have access to better information than I have, but I wasn’t aware that the government is collecting “emails, text messages, website visits, web search history, skype calls, credit card information, and travel plans” from Americans. Please elaborate or provide evidence for this claim.
I know that the NSA collects such information on “valid foreign intelligence targets,” and it is possible some Americans who communicate with those suspected of being terrorists might get caught up in that collection—even though the NSA reportedly washes all “U.S.-related” messages from that international database. But it is not the practice of the NSA (as far as we know) to collect such things here at home. That is why the President’s speech focused on the phone data. You think he would leave out the other stuff if it were going on domestically? He would have been mercilessly hammered day and night.
As for your Fourth Amendment argument, do you really think the “unreasonable searches and seizures” language applies to phone records—and remember, we are talking about just the records, not the content of the calls—that are collected and initially held by private companies? Sure, now that the thing is out in the open, now that Edward Snowden has told the world, including our Allah-fearing enemies, what is going on, I’m all for having the Supreme Court decide if “unreasonable” applies to what the NSA is doing with its phone data collection program. If the Court finds it unreasonable, though, it would also have to find that a lot of what modern government is doing is similarly unreasonable, like, say, checking my luggage at the airport.
I recently traveled to Arizona on an airplane. I was required to submit to an inspection of my carry-on items. My body was scanned. Once I was safely home, I found in my checked bag a notice from the Transportation Security Administration. The notice said the agency had opened and inspected my bag for “prohibited items.” In fact, in the notice were these words:
If the TSA security was unable to open your bag for inspection because it was locked, the officer may have been forced to break the locks on your bag. TSA sincerely regrets having to do this, however TSA is not liable for damage to your locks resulting from this necessary security precaution.
Did the government violate my right to privacy? When it was rummaging through my socks and skivvies, did it violate my Fourth Amendment rights? It seems to me that such a government action carried out by the TSA is much more egregious than what the NSA is doing with my phone records, which is to say it is storing them on a computer somewhere without looking at them. Yet millions upon millions of us tolerate such action by the TSA at our nation’s airports, and some of us even welcome such action. I know I do. I don’t mind it a bit. I’m not the least worried about it. Why? Because I value—I highly value—having at least some confidence that someone checked to see whether some Allah-loving fanatic, or some other suicide-bombing nut, tried to smuggle something deadly aboard the plane. In other words, I worry much more about my security on the airplane, where I am helpless as can be, than I worry about some TSA employee gazing at my underwear, whether in my bag or on my body.
Let me explain where I would draw the line. I had a laptop in my checked luggage, the same luggage the TSA opened and inspected. If a TSA employee had attempted to turn on my laptop and check its contents, or if the employee had gone through my personal papers in my luggage (I didn’t have any this trip), I would have had a major problem with that. Why? Because such actions are unrelated to what the mission of the TSA is. A search like that would involve going way beyond a legitimate security purpose. Thus, I would also oppose the NSA’s actions if it were collecting the kind of data you suggested it was collecting, not to mention querying it without a court order.
I’m willing to bet that the vast majority of Americans, more that 99%, are NOT spies and have NO intention of blowing stuff up or flying planes into tall buildings. And I resent like hell being put in the same category as a terrorist and then allowing my government to eviscerate one of the most important rights I have — we all have — under the Constitution.
I agree that most of us aren’t spies or terrorists. That is why President Obama rightly said that the NSA is not “examining the phone records of ordinary Americans.” I think it is fair to say that ordinary Americans aren’t plotting to kill innocent people in the name of Allah. But to say that because the NSA is holding your personal phone records in a database somewhere means that the government has eviscerated “one of the most important rights” you have, sounds to me to be a little, well, melodramatic. The government is not looking at most of those records; it certainly is not listening to your phone calls or reading your texts and emails, no matter how interesting they might be. So I am at a loss to figure out how your phone bill records are so sacrosanct. I know mine aren’t.
Maybe the Supreme Court will one day find that what the NSA is doing, collecting and storing but mostly not looking at uncountable numbers of phone records from the various phone companies, is unconstitutional. But we shouldn’t kid ourselves that if it does, if the Court kills the metadata program, we might technically believe ourselves to be more free, but at what future price? You see, most of the objections to the NSA program involve the potential for future abuse, just as the program itself is designed to prevent future attacks. And just as I am willing to trade some minor privacy intrusions at the airport in return for reasonable assurances that some crazed killer won’t blow up my airplane or fly it into the nearest skyscraper, I am also willing to trade the minor privacy intrusion of having my phone records resting on some hard drive in some government-owned building in exchange for reasonable assurances that terrorists will have a tougher time doing today what they did on September 11, 2001.