For decades, detectives investigating crimes committed in the U.S. have been able to call up phone companies and find out what calls were made from someone’s phone. Under a Supreme Court ruling from 1979, no warrant was needed unless the police also wanted to listen in. Today, as part of an effort to uncover terrorist plots before they are put into action, the government tracks all of the calls made by almost every American, along with text messages and e-mails. Thanks to revelations about National Security Agency programs from Edward Snowden, the former NSA contractor who stole an estimated 1.7 million secret files, Congress, the courts, President Barack Obama and the public are wrestling with the question of how much information the government should be allowed to collect. How big does a pile of mundane data about ordinary citizens have to be before the people keeping us safe turn into Big Brother?
In December, two federal judges looked at that question. One called the bulk-collection technology “almost Orwellian” and said the program probably violated the Constitution. The other called it legal under existing precedents. An advisory panel appointed by Obama concluded that the phone records program “was not essential to preventing attacks” and a privacy board created by Congress reached a similar conclusion. The Obama panel said the government should have to get permission to get access to the data on a case-by-case basis from the Foreign Intelligence Surveillance Court, a secret panel of judges, which almost always gives the green light to requests. In a January speech, Obama said the data collected should be held by private telephone and Internet companies rather than by the NSA — an idea the companies dislike. The president also called for privacy advocates to have a role in the FISA court, but he left the details of that and a raft of other questions up to Congress. In Britain, revelations about the Government Communications Headquarters, the U.K. equivalent of the NSA, and its hand-in-glove relationship with American spooks have triggered questions about its willingness to use U.S. collection methods to obtain data about U.K. citizens.
While government surveillance goes way back — remember David watching Bathsheba? — it took the harnessing of electrons to give the practice real reach. Every step forward in communication — telegraph, telephone, e-mail — has been embraced by police and intelligence agencies as a new way of listening in, sometimes within the law, sometimes not. What’s different is the shift from targeting individuals to mass collection. In the 1990s, the FBI and others started vacuuming up data from phone calls and e-mails. Snowden’s leaks showed how the combination of powerful data analysis tools, a loosened legal framework in the wake of the 9/11 attacks and the widespread adoption of smartphones laid the groundwork for data collection on a previously unimaginable scale. The NSA and the FBI still need a warrant to listen to the content of calls, but the metadata they collect about the calls can let them know who you talked to or e-mailed, when, from where and for how long, along with who those people call, and who their contacts call.
Everyone debating the NSA’s programs agrees on the goal: securing the nation from terrorism without undermining civil liberties. Critics say what Snowden reveals is the twisting of that goal into the institutionalization of what author Gore Vidal called the “National Security State.” The officials who oversee the spy programs say they need to compile a giant haystack of data to find needles quickly; they dismiss privacy concerns as overblown. Director of National Intelligence James Clapper told Congress that snooping should be measured by a “peace-of-mind metric.” Supporters of the bulk collection say it’s justified by the 1979 Supreme Court decision, which held that since everyone knew the phone company kept records of their calls there was no expectation of privacy. Critics challenge that interpretation, and say that safeguards that may have been adequate in the days of dial telephones are meaningless today.
The Reference Shelf
- Barack Obama’s August 2007 speech at Washington’s Wilson Center pledging that as president there would be “no more illegal wiretapping of American citizens.”
- A December 2010 report from the American Civil Liberties Union on the impact of the Patriot Act on privacy rights.
- Wired magazine’s 2012 article on the NSA’s metadata collection center in Utah.
- The Louvre’s webpage for Rembrandt’s 17th-century painting, “Bathsheba at her Bath.”