Last week, it was revealed that the nation's biggest telecom companies are sending the government records of every phone call made on their systems every day.
These revelations have caused not just privacy fanatics, but most ordinary Americans, to freak out about privacy and worry that the country's data gathering and obsession with security has gone too far.
So should you be freaked out that the government is collecting your telephone records?
Actually, no, says Stewart Baker, the former top lawyer at the National Security Agency, in a column at Foreign Policy.
Baker starts off by emphasizing the following points:
- The government is not collecting the content of your telephone calls — just the "meta-data" records associated with them.
- There are very tight restrictions on how the government is allowed to search and use these records once it has collected them.
- The NSA is not allowed to use any insights it gleans from these records to do anything to you unless it thinks you are a spy or a terrorist.
Baker then offers the following example to explain why the NSA would want to build a database of call-record meta-data and how it might use that data for good — to help stop terrorists. (Many people have assumed that the only reason the NSA would want this data is that it wants to spy on ordinary law-abiding Americans.)
Baker's example is complicated. But it will give you a sense of what the NSA might legitimately be trying to do with this data, as well as the challenges the agency faces in doing the job that the country has asked it to do.
[W]hy would the government collect all these records ... And, really, what's the justification for turning the data over to the government ...?
Consider this entirely hypothetical example.
Imagine that the United States is intercepting al Qaeda communications in Yemen. Its leader there calls his weapons expert and says, "Our agent in the U.S. needs technical assistance constructing a weapon for an imminent operation. I've told him to use a throwaway cell phone to call you tomorrow at 11 a.m. on your throwaway phone. When you answer, he'll give you nothing other than the number of a second phone. You will buy another phone in the bazaar and call him back on the second number at 2 p.m."
Now, this is pretty good improvised tradecraft, and it would leave the government with no idea where or who the U.S.-based operative was or what phone numbers to monitor. It doesn't have probable cause to investigate any particular American. But it surely does have probable cause to investigate any American who makes a call to Yemen at 11 a.m., Sanaa time, hangs up after a few seconds, and then gets a call from a different Yemeni number three hours later. Finding that person, however, wouldn't be easy, because the government could only identify the suspect by his calling patterns, not by name.
Then Baker explains why the NSA would want and need to build its own database of the call-record data, rather than making specific data requests of each telecom provider whenever circumstances warranted.
So how would the NSA go about finding the one person in the United States whose calling pattern matched the terrorists' plan? Well, it could ask every carrier to develop the capability to store all calls and search them for patterns like this one. But that would be very expensive, and its effectiveness would really only be as good as the weakest, least cooperative carrier. And even then it wouldn't work without massive, real-time information sharing — any reasonably intelligent U.S.-based terrorist would just buy his first throwaway phone from one carrier and his second phone from a different carrier.
The only way to make the system work, and the only way to identify and monitor the one American who was plotting with al Qaeda's operatives in Yemen, would be to pool all the carriers' data on U.S. calls to and from Yemen and to search it all together — and for the costs to be borne by all of us, not by the carriers.
In short, the government would have to do it.
In other words, Baker has provided a concrete example in which the NSA might use call-record data to foil a terrorist plot without invading the privacy of any law-abiding Americans.
If Americans could be confident that this is the only way their call-data record would be used, more of them would likely be comfortable with the NSA collecting it. So, like many other revelations the country has had since the start of these leaks, this argues for more oversight and transparency.
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