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The NSA and silly outrage about “phone data”

June 7, 2013

nsa-logoEveryone is going crazy with outrage  and dismay and comparisons to Deep Space 9 at revelations the NSA has access to our phone records. People: the NSA has always had access to our phone records. Always, always.

Today the boss of the NSA tells us it’s all about foreigners only, and highly Constitutional. This is what he must say, because the law allows only data and records related to foreign people to be examined under these warrants. It is called the Foreign Intelligence Surveillance Act.

But hey, get real. FISA was born of Frank Church’s Senate Intelligence Committee Hearings in the mid 1970s, in the wake of the Watergate scandal. Remember? President Nixon has a so-called “enemies list” full of Jews and journalists, plus a team of black bag guys breaking into offices and hotel suites. He used the IRS to punish those he distrusted. It was all very sordid and the inside scoop made Bob Woodward a millionaire.

And so: committee hearings. And then: reform. But what was the reform about? Twenty years ago I read the Congressional Record relating to FISA’s creation. The reform was not to curb the ability of our brave intelligence gatherers to get the dirt. And it was not to curb the power of the President. It was to “restore trust” in the various intelligence agencies. That was the language used in the discussion of FISA.

It was a PR move.

FISA was designed as a secret court where secret evidence would be brought and secret rulings made. It is the same now, though the USA PATRIOT ACT has broadened its power and loosened the supposed rules keeping FBI guys from sharing their hunches with CIA, NSA, military intelligence and etc.  These are the basic facts everyone ought to have handy in their heads every day as they go about their business.

Then stuff like the Guardian published the other day won’t be a surprise.

So, what does it mean that “data” from your “phones” is in the government’s hands?

Not much.

By all reports, it is what used to be called the “pen register.”  Basically it’s the list of calls made, the times they were made, and the numbers reached. To understand how a government official might think this is not especially intrusive, you have to know this: you and I have the right, under FOIA, to see any and all government officials’ pen registers (with the exception of the classified ones, of course). If the government owns a phone, you can  request the data.

Will you get it? Probably not without filing a lawsuit. But the law is on your side. In fact, that law was made right here: In a 1979 case captioned Smith v. Maryland, the U.S. Supreme Court declared that the use of a pen register is not an invasion of privacy. The legal questions that animate the field this day have to do with public information on private devices held by public officials. )

Of course, one or a dozen officials’ phone records are not so much data that a reporter can’t make some sense of it. The thing preserved for scrutiny in this scandal is, basically, everyone’s pen register since 2007 or earlier. How can this be analyzed in such a way that your privacy is at risk? You’d have to be a major paranoiac (or someone engaged in some shady business) to imagine that anyone at the NSA cares how many times you called aunt Beatrice or that old flame you’re not telling your spouse about.

Not saying anyone should trust the gubmit. But what about the men and women who control that data every day?

The data has always been there, ripe for anyone at the phone company to analyze. Just like Comcast employees can know everything you watch on the tube and, if so inclined, share that info with their government enablers.* Verizon apparently doesn’t do much on that score. Google has built an empire doing it. Every email, every document, every photo you download or upload. It’s compiled and mapped, skimmed and scanned, used to determine which advertisements you encounter not just in your browser but, effectively, anywhere you look on the web.

Google does not have drones, of course, nor a policy of targeted assassinations. Not yet, anyway. Google says, like the NSA, that it doesn’t use the “metadata” to determine your identity.

But it could, of course.

And the links between Google and NSA are not secret.

So if the fact that a secret government agency has access to a record of the calls you’ve made (or your Google cache, or your texts, or whatever digital bread crumbs you’ve left in the past decade) comes as a revelation, you’ve not been paying attention. If it bothers you, as you update your Facebook and post your tweets, you might ask yourself why.

Why now?

*True story: Circa 1987 I traveled to the Florida Keys to meet an old pal. He had just finished wiring Marathon for cable and, for kicks, took me to the control room and proceeded to replace some random customer’s screening of a nature show with about four seconds of The Playboy Channel.

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