The NSA is not “spying” on Americans

So, the “left” and “right” have teamed up in opposition to the NSA’s bulk collection of phone metadata, which is often referred to by many as the federal government “spying” on Americans.

In “ACLU & Tea Party: NSA reform bill has gaping holes“, Anthony D. Romero, the executive director of the American Civil Liberties Union, and Matt Kibbe, the president and founder of FreedomWorks, write a spirited diatribe against Section 215 of the Patriot Act, which authorizes this bulk metadata collection and is set to expire on June 1.  In reading this column, I have discovered that Mr. Romero and Mr. Kibbe (strange bedfellows indeed), are operating under a few obvious misconceptions, and I thought it necessary to point those out.

Let’s dive right in.

FIRST: You do not OWN that metadata.  The Fourth Amendment guarantees “The right of the people to be secure in THEIR persons, houses, papers, and effects, against unreasonable searches and seizures” (emphasis mine).  That means you are only guaranteed the right of security for things YOU own, and not data owned by someone else, such as a phone or internet service provider…even if that data is ABOUT you.

Despite what courts have ruled – in direct contradiction to the clear wording of the Constitution, as they often do – the Fourth Amendment does NOT guarantee our privacy, but simply our property rights.  And if you do not own something, then it is – obviously – not YOUR property, and the Fourth Amendment does not apply.

Consider this (admittedly overly-simplified) analogy: Let’s say that you borrow a book from me, and proceed to write a bunch of your own personal information inside it.  That book is still my property, and thus so too is the data about you now contained within its pages.  Yes, I am still legally prevented from using that data for nefarious purposes (such as identity theft, etc.), but that does not make the data any less my property now.  I did not steal it; you willingly gave it to me.  How much more then in the case of telephone numbers which are ALWAYS owned by the service providers?

Or imagine that you are walking past some landmark right when a tourist snaps a picture of it – and you – with his camera.  Your presence at that specific location at that specific time is now recorded by someone else, and, if later applicable and/or necessary, is admissible as evidence in a court of law.  And you did not even give that tourist permission to take your picture, which gives him specific data ABOUT you, as you do with a phone company when you sign up for their service.  But that data about you is now the property of that tourist, to do with as he pleases.

SECOND: Romero and Kibbe cite the fact that “the White House’s own review group found that the nationwide phone-records program operated under Section 215 has not prevented a single attack.”  This is a disingenous and misleading characterization that completely ignores a couple key points.

The public will never fully know about every single prevented attack, as much of the relevant information remains classified, and revealing it would tip off would-be attackers and their associates that we know who they are and are monitoring their communications.

Being able to investigate AFTER successful attacks who the perpetrators communicated with in the past – prior to their coming to our attention by virtue of their successful attacks – is very useful to learning more about what other attacks might be planned, and by whom.  Unfortunately, we often do not even know who to be on the lookout for until they carry out an attack, because of legal safeguards in place to protect them from unwarranted scrutiny prior to committing a crime.  But to tie our hands by not being able to look back into their past communications after they do conduct an attack would be utter negligence.

THIRD: Our rights are protected not by limiting the government’s ability to collect data (which, again, we individuals do NOT own), but by stipulating what the government can DO with that collected data, under what circumstances they can do it, and to whom.

Collection does NOT equal surveillance.  As the former head of Britain’s GCHQ (their version of NSA) has explained, “The distinction between mass surveillance and bulk access to data is confused in the media.  Mass surveillance would mean persistent observation of the population.  Observation needs observers.  There is no such mass surveillance team at GCHQ.  Computers, not people, have access to bulk data, zillions of gigabytes, in order to find the very small amount of information relevant to the legally authorized intercept on the terrorist, criminal or other legitimate target.”

If we prevent the government from being able to collect bulk data – or even from being able “to turn on your computer, cellphone or mobile device in your home and elsewhere, and use your own devices to spy on you” – then we are limiting the government’s ability to carry out those activities against our enemies as well.  And never forget that many of those enemies live here among us.

FOURTH: The government’s ABILITY to collect bulk metadata does not mean it has the AUTHORITY to comb freely through all of that collected data.  There are safeguards in place to protect the rights of Americans that precede passage of the Patriot Act, but which still apply to any data collected as a result of it.

Executive Order 12333 (EO 12333) lays out specifically in Part 2 (“Conduct of Intelligence Activities”) how collection activities should proceed in a manner “consistent with the Constitution and applicable law and respectful of the principles upon which the United States was founded” including finding “the proper balance between the acquisition of essential information and protection of individual interests.”

Also, United States Signals Intelligence Directive 18 (USSID 18) strictly prohibits the “interception or collection of information about…U.S. persons, entities, corporations or organizations” without explicit written legal permission from the United States Attorney General when the subject is located abroad, or the Foreign Intelligence Surveillance Court when within U.S. borders.

The same holds true for the government’s ability to remotely turn on electronic devices and use them to spy on their users.  The bad guys use the same types and brands of computers and cell phones that we do, and I certainly want the government to be able to target them in whatever way possible.  But, again, having the ability to do that does not give the feds the authority to direct those actions against innocent Americans.

FIFTH: This whole debate is largely a distraction from a much more important discussion we SHOULD be having: one of enumerated powers vs. extra-constitutional ones.  National security/defense most certainly is a constitutionally required duty of government, while most of what the federal government does is not.

I am all for debating HOW the government should best act to fulfill its enumerated powers, but that is a completely separate discussion from the much more important and basic one about limiting government TO those few powers.

SIXTH: This debate also distracts from the much larger problem of our new overall foreign policy under President Obama, which diminishes America and emboldens our enemies.  In Obama’s rush to withdraw from Iraq, for instance, we left a vacuum that allowed the emergence of ISIS, which is now stronger than al-Qaeda ever was and controls more area than al-Qaeda ever did.  Also, countries like Russia and Iran have no qualms about flexing their muscles when they know they will no longer face any real pushback from the U.S.

Not to mention the fact that Obama wants to now extend legal safeguards for Americans to foreigners as well, which would all but annihilate the IC’s ability to properly conduct foreign intelligence collection.  Presidential Policy Directive 28 (PPD 28) outlines Obama’s goal to ensure that “U.S. signals intelligence activities must…include appropriate safeguards for the personal information of all individuals, regardless of the nationality of the individual to whom the information pertains or where that individual resides” (section 4).  He also seeks to ensure that legal protections and definitions are applied “in a manner that is consistent for U.S. persons and non-U.S. persons” (footnote 7).  There is absolutely is NO legal basis for this presidential proposal at all…it’s COMPLETELY policy-driven.

There are thousands of good people throughout the intelligence community (IC), who work their butts off trying to stop terrorists from killing Americans.  Unfortunately, they all work for a president who is more than content to make the country more and more vulnerable, thus making their jobs to protect America much harder, if not altogether impossible.

The IC strives mightily to stop individual terrorists from engaging in travel or acts related to terrorism – what I like to refer to as “terrorist whack-a-mole” – while the dangerous organizations they belong to or support ideologically continue their conquest largely unabated.  Stopping a few wanna-be jihadis here or there does next to nothing to curb the overall, ever-growing scourge of terrorism…especially when your country’s new approach is apparently to snatch defeat from the jaws of hard-fought victory, to support Islamist uprisings throughout the Middle East, to ensure that your national borders are as unsecured as possible, and to work feverishly to diminish America’s superpower status.

Regardless of whatever tools the IC has at its disposal – from bulk metadata collection to the ability to remotely operate electronic devices as spy gadgets – when our national policy now largely contravenes and undermines that intelligence work…what’s the point?  “Leading from behind” not only gives you a horrible view, but is not really “leading” at all.

Romero and Kibbe say that we should let Section 215 expire and “Then, the American people can debate how far we are willing to allow the government to go in the name of national security.  It is a discussion the government has disgracefully prevented its citizens and their elected representatives from having for 14 long years.”

Well, why wait for Section 215 to expire?  And why wait until the government ALLOWS us to have that discussion?

Let’s continue that chat right now.

The ball’s in your court, gentlemen.

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