Sythetic Privacy

During the last number of years, it almost appears as if a number of people within the government have been waging a quiet war against the policies of the administration. This war has involved not only leaking but even the apparent fabrication of false evidence. A number of stories in the Weekly Standard have described this phenomenon. One of the latest salvos in this struggle has been the leak of yet another secret program in the war on terror. This is the leak of the program regarding the accumulation of statistics and data on American telephoning. Undoubtedly, the timing of this leak was designed to interfere with the nomination of former N.S.A. head, General Michael V. Hayden, as the new director of the Central Intelligence Agency.

The newly leaked program, if press accounts are to be believed, is a program in which the National Security Agency has essentially collected all of the phone records for all of the telephone calls made involving the phones in the United States. These records don’t include names or addresses, merely phone numbers and calls to and from each of those phone numbers. In other words, this is a database of phone call patterns. It allows the N.S.A. to analyze overall who is calling who and the amount of traffic between certain areas of the country and the United States and different countries overseas. It also means that if a terrorist’s number is detected, it will be possible to go back and find all of the numbers that were called by that number and then to investigate accordingly. This is an obvious tool for the war on terror. It is also something that cannot be done under the system of court orders and warrants. There is no way to obtain a blanket warrant to engage in this type of program. But probably there is no need to do so. Because specific names and addresses are not used, and because the content of telephone calls is not monitored, there is probably no actual violation of the Fourth Amendment of the Constitution. In addition, this program is again well within the president’s war power to conduct tactical intelligence operations during a time of war. All of these arguments are likely to be lost on the administration’s critics.

Our society has come to have an unreasonable expectation of privacy. I believe it is perfectly reasonable to expect that the government will not raid your home, look through your private papers and letters, or read your letters as they go through the mail without warrants. It’s also true that the government probably should not wiretap your home or office without some kind of a warrant. On the other hand, Americans have come to not only expect this regular level of privacy—security in our personal homes and papers—but to think that other people should actually take actions of ours that are public in nature and essentially cover them up so that our privacy must be protected by others. For example, people are concerned if grocery stores provide information to advertisers about what sorts of products they buy. Undoubtedly, if the Department of Agriculture were collecting information from grocery stores about what Americans bought, this would be highly objectionable to the same people who object to the phone number data collection. But we buy items in public. We go to stores that are public places, we pick things up and put them in a cart where everyone can see them, and we pay for them in front of 15 other people standing nearby at the checkout line. There is no question that what we buy at the store simply isn’t private. The same thing is true for public library records—a major bug-bear in the debate about the Patriot Act. You go to a “public” library. You pick out books in front of all the other patrons. You take them to a counter where another human being sees what you are checking out, and where other patrons may likely see what you are checking out. Records are kept of the books that you take out and when you return them. These records are kept by a public institution, a library belonging to the government. And yet people somehow think that the library has a duty to cover up any knowledge of whatever books you publicly looked at. With these kinds of expectations, I suppose it’s only natural to expect that people will also want the phone company to protect their phone records from the government. When you make telephone calls, the telephone company knows who you called. They even know how long you talked to them. There are thousands of employees in the telephone company and many of them may actually have access to some part of your record even though that record may not include your name and address. They may see exactly the kinds of things the N.S.A. sees—lists of numbers which have called other numbers. And now people expect that the telephone companies, corporations filled with many people, should effectively cover for individual’s concerns about other people knowing what numbers have contacted other numbers. Pardon me, but it seems to me that this is rising to a high level of paranoia and silliness. Isn’t it more important to keep people from getting blown up than that some giant computer somewhere in Washington has two lists of correlated phone numbers. The government still isn’t listening in on your individual phone calls without a warrant, unless, of course, you’re talking to a known terrorist. The government still isn’t prosecuting people based upon these phone lists, let alone making them disappear in the middle of the night as happens in the many totalitarian countries that the same people complaining about this program are often apologizing for. And if information from this program were used in a court, it probably would be excluded, based on a broad interpretation of the Fourth Amendment, even though that does not mean that the government should be prevented from gathering or using the information for intelligence or war-making purposes.

I do believe that people do have a right to be secure in their homes and personal documents. I don’t want the government eavesdropping on just any conversation willy nilly. But on the other hand, we need to have realistic expectations concerning privacy and an understanding that other people do not have an obligation to keep private what is actually public.