Another Perspective

The NSA Program in Real-World Perspective

What kind of world do critics think we're living in?

By 7.10.13

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Reality, logic, and history need be applied to hysteria of some concerning NSA’s possession of all phone numbers called by phones of Americans and even, some say, the addresses from and to all emails.

Consider the same law enforcement tactic used successfully to catch domestic criminals. Just recently, a dozen of similar-type robberies by disguised culprits culminated in a run-in to the Cartier jewelry store in Chevy Chase, $130,000+ watches were grabbed, followed by escape in a waiting car lost in traffic. Using records, obtained from cell service providers, of phones active in the area before and after robberies, the FBI identified owners of those phones and made arrests.

Should those robbers be released on the assertion that their 4th Amendment right to be free from unreasonable searches was violated? That unacceptable conclusion would be required in this microcosm of domestic crime, if the NSA could not get the same type of information from phone and email servicers in its fight against terrorism.

The Supreme Court has long held constitutional the disclosure by phone companies to law enforcement of to-and-from numbers on phone calls. In 1979, the Court upheld police installation of a pen register that recorded all phone numbers called from a suspected robber’s home -- without search warrant. The reasoning: the Fourth Amendment does not protect a person’s right to keep private information that person has voluntarily conveyed to a third party. When a person makes a call, it is known the number being called, as well as the caller’s number, is necessarily conveyed to the phone company and its employees.

Courts, using the same reasoning, have for decades upheld disclosure by postal service to law enforcement of addressor/addressee information, plus postmark date, found on the envelopes of snail mail. Going beyond the to-and-from information, the Supreme Court upheld -- without any search warrant -- a bank’s disclosure to law enforcement of financial information conveyed to the bank by a depositor in checks deposited, deposit slips, and withdrawals. The reason: the depositor had voluntarily conveyed them to the bank, knowing that he was thereby sharing the information with bank employees.

If such procedures are permitted on simple crimes, they would clearly be available to our government to perform its responsibility to protect Americans against terrorist attack.   

Most significantly, the courts have upheld government searches even where, unlike in the NSA program, there is a physical invasion of persons’ private property, making the legality of the NSA program a fortiori. For example, Justice Sonia Sotomayor -- respected exponent of civil liberties -- upheld, as a Court of Appeals judge, anti-terrorism physical searches “unsupported by probable cause.” Her reasoning applies to the NSA program: “Preventing or deterring large-scale terrorist attacks present problems that are distinct from standard law enforcement needs.”

Naysayers parade possible horribles. First, they claim the program allows prying into Americans’ digital lives. But that danger exists without the NSA program, as all cell and email servicers have access to that content, and unashamedly admit using it. The possibility that a law-breaking employee will steal the information appears less likely with a NSA employee than private employees, given security clearances and greater sanctions on the former. Of course, if any employee -- whether of the phone company or the government -- violated his trust to invade and disclose content, that would be a prosecutable offense. Finally, the worry that the NSA program would arm a totalitarian President with weapons to use against his enemies: the reality is that, even without the NSA, such a President would force service providers to divulge information to him.

The bottom line: are our civil liberties more secure under our government, defending against an enemy that seeks to kill our people and destroy our country, or under that enemy’s terror and control? The first Supreme Leader of modern Iran, Ayatollah Khomeini, disclosed the threat we face when he declared that, in the forthcoming battle, he had no problem that Iran “go up in smoke, provided Islam emerges triumphant in the rest of the world.” Balanced against that real world, the NSA program’s interference with any rights fades into a necessary and acceptable burden.

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About the Author

Gerald Walpin was Inspector General at the Corporation for National and Community Service (CNCS), after nomination by President George W. Bush and Senate confirmation. He served until fired by President Obama.