Monitor Your Reaction

I'm not Charles Krauthammer's biggest fan, but he makes a good point that the potential problem isn't with what the NSA is doing vis-a-vis phone log pattern searching, it's with how we react to it.

Thirty-five years ago in United States v. Choate, the courts ruled that the Postal Service may record what's written on the outside of an envelope - the addresses of sender and receiver.

The National Security Agency's recording of U.S. phone data does basically that with the telephone. It records who is calling whom - the outside of the envelope, as it were. The content of the conversation, however, is like the letter inside the envelope. It may not be opened without a court order.

The constitutional basis for this is simple: The Fourth Amendment protects against "unreasonable searches and seizures" and there is no reasonable expectation of privacy for what's written on an envelope. It's dropped in a public mailbox, scanned at the collection center and read once again by the letter carrier. It's already openly been shared, much as your phone records are shared with, recorded by, and (e)mailed back to you by a third party, namely the phone company.

Indeed, in 1979 the Supreme Court (Smith v. Maryland) made the point directly regarding the telephone: The expectation of privacy applies to the content of a call, not its record. So there is nothing constitutionally offensive about the newly revealed NSA data-mining program that seeks to identify terrorist networks through phone-log pattern recognition.

But doesn't that other NSA program - the spooky-sounding James Bond- evoking PRISM - give you the willies? Well, what we know thus far is that PRISM is designed to read the emails of non-U.S. citizens outside the United States. If an al-Qaida operative in Yemen is emailing a potential recruit, it would be folly not to intercept it.

As former Attorney General Michael Mukasey explains, the Constitution is not a treaty with the rest of the world; it's an instrument for the protection of the American citizenry. And reading other people's mail is something countries do to protect themselves. It's called spying.

Is that really shocking?

The problem here is not constitutionality. It's practicality. Legally this is fairly straightforward. But between intent and execution lies a shadow - the human factor, the possibility of abuse. And because of the scope and power of the NSA, any abuse would have major consequences for civil liberties.

Are the Feds watching you? In a general sense, yes. But are the Feds watching YOU? No. Not unless you're making phone calls to suspected Al Qaida operatives and combing through forums about how to make bombs. The reason is simple: volume of information. There is absolutely no way any organization, however large and nefarious and well-funded, can track what every citizen is doing, who they are communicating with, etc. It's simply a physical impossibility. In order for that to be the case, we'd need a third of the population engaged in watching the other two-thirds. I think we'd kinda notice that, don't you?

The problem is two-fold. First, the potential (note the emphasis) for abuse. The Obama administration has clearly demonstrated that they are willing to use the bureaucracy for politically-targeted attacks. If they'll do it with the IRS, there's no reason to think they won't do it with other agencies. But the second point is more subtle and is being missed by a lot of the self-appointed "privacy advocates" as they windmill their arms and hop and up down like Chicken Little: if we overreact and cripple the NSA, CIA, etc., we're shooting ourselves in the foot. Or throwing out the baby with the bathwater. Pick your metaphor. The fact is that such organizations are necessary to our maintain our freedoms. They aren't "in your face" like a battalion of Marines, but the work they do is just as vital. And like a standing military, they are a potential threat to our freedoms. Vigilance is necessary to see they don't cross the line. Vigilance... not panic and sophistry.

The Snowdon kid is not some kind of folk hero, he's a ignorant dickhead who violated an oath and made us all less safe in the process. Was his intent "pure"? Possibly. But it doesn't matter what his intent was if the end result is to cripple our intelligence gathering capabilities, now does it?

So before we start chopping down trees to crucify everyone at the NSA, let's see what's actually going on. I understand you're mad at Obama over the IRS thing; so am I. But lashing out emotionally over an issue that may well be completely unrelated isn't going to help the situation.


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Hat-tip to Dixie M.