May 14, 2006

Privacy and the War

The NSA is in the news again with reports that they asked for, and received, the call records, sans personally identifying information, from all major telcos but Qwest.

While it appears that the government didn't violate any laws with this effort, since the data was given voluntarily, the companies may be in violation of the Stored Communications Act or the Electronic Communications Privacy Act (or a host of other telecommunications laws going back to 1934).

This new program, coming on the heels of the earlier one to eavesdrop on international phone calls, has brought to the forefront the question of what the proper balance is between security and privacy during wartime.

I've been on record defending the previous program, which might seem kind of weird for someone who bills themselves as a classical liberal. And to be honest, I'm not too happy in the abstract about either effort, or the whole idea of the State watching everyone that closely. But there are three reasons I've defended them:

  1. Many people rushed to judgment and claimed that it was clearly illegal before the details of the program came out and without knowing what the law and case law said. In neither case was it obvious from initial reporting that a law, or the Constitution, had been violated.
  2. Many people who attacked the programs were also quick to accuse the Bush administration of not "connecting the dots" on previous attacks.
  3. It wasn't clear to me that the invasion into our privacy was any worse than what we put up with on a daily basis for a host of other (less important) reasons.
That last point is worth expounding on. Even if the government is getting all of our calling records, why do people think that this is some unprecedented violation of privacy, never before countenanced by the American people? As Mark Steyn points out:
I'm a strong believer in privacy rights. I don't see why Americans are obligated to give the government their bank account details and the holdings therein. Other revenue agencies in other free societies don't require that level of disclosure. But, given that the people of the United States are apparently entirely cool with that, it's hard to see why lists of phone numbers (i.e., your monthly statement) with no identifying information attached to them is of such a vastly different order of magnitude.
People were outraged by the Patriot Act, but many of the provisions simply extended to counter-terrorism tools that the DEA was already using in the War on Drugs. And the NSA calling database program pales in comparison to the pervasive invasion caused by the current income tax regime. Every stock I own, every bank account or piece of real property, the salary I earn, the gifts I give or receive, the tuition, the medical expenses I pay. All of this is already sucked up into a vast database to tell the government how much to expropriate from me. Surely this is a much greater violation than a database of phone numbers I've called. And surely there are other less intrusive means that could be used to gather revenue.

And that's where the libertarian in me comes out. If we're going to have intrusive, privacy-shredding policies they should be used where there are few or no reasonable alternatives and where the government has a legitimate role to play. So I don't understand the concern, the national coverage, talk of impeachment, in having these programs for national security when as bad or worse exists to continue a failed policy of drug prohibition or an inefficient policy of tax collection and enforced retirement savings.

Defense is a proper role of the federal government. Drug prohibition, enforced savings, and income redistribution are not as far as I'm concerned. So, while it would be consistent for me to support the NSA wire taps and not the others, I'll make this pledge: once we get rid of the IRS and the War on Drugs (which is about a thousand times less likely to end than the War on Terror), and their excesses, I'll get more concerned about what we're doing to try to stop another 9/11. Posted by richard at May 14, 2006 12:48 PM


The administration does not deserve the benefit of the doubt here. The real problem is accountability. There are essentially no legitimate arguments for such invasive policies who existence are themselves secret. And where secret programs are needed, accountability both for today and for histroy have to be ensured. FISA courts are a good example for the first kind of accountability and automative declassification after 40 years is a good example of the second kind of accountability.

And the most galling thing is to have the audacity when getting caught with your hands in the cookie jar to blame the whistleblowers.

On the merits of the program, your reasons and others proffered by administrations officials don't hold up to any scrutiny. It's not about balancing privacy vs. security. It's about not diverting scarce security resources for innane (at best) purposes.

When you are looking for a needle in a haystack, the last thing you do is add more hay.

Posted by: Michael Weiksner at May 15, 2006 02:36 AM

Odd of a supposed libertarian to use a government's established incursions on individual privacy to justify further incursions.

While it's true that much of what makes a search or seizure "reasonable" or "unreasonable" for Fourth Amendment purposes is whether a person has an "expectation of privacy," there is a certain spiraling that takes place when we take steps that continually reduce people's expectations.

Now obviously what is a legal expectation of privacy and what is, for our purposes, an argumentative expectation of privacy are two different things. But the same sort of slippery-slope feedback loop dynamic applies to this conversation.

I have argued in the past that the American people are desensitized to censorship because the Supreme Court allowed the Decency Police to regulate television. So they think if you can't say f**k on network television or the radio, why should you be able to say it on cable, or in a book, or on a rock album? And suddenly most Americans could care less what content gets regulated, and they rear up and take offense when something "indecent" takes them by surprise. I think that sucks.

Now you're actually arguing that because the American people tolerate certain significant intrusions into their privacy, they should suck it up and keep quiet when other intrusions are made?

That's absurd. If you're truly a libertarian you should "get concerned about" any such intrusion — because if you give the government an inch, it will take a mile. Your argument seems to be that if you give the government a mile, it's not a big deal if it makes additional, incremental grabs of a furlong or two.

The logic is seductive, but I think it comes up lame. Not to mention that there are certain dynamics at work that should affect the comparison. E.g., if you found out that the NSA had, without your knowledge, been compiling a database with all our financial information, and the government told you that it was dangerous for you even to know about the data collection, and you shouldn't even have known about it (much less raised a ruckus) — well, you'd be more troubled. You just would.

At least the tax laws are open, authorized by Congress. You may not like them (and I don't, either), but you're basically comparing rotten apples to rotten grapes and saying the grapes are fine, because they're smaller and therefore easier to swallow. Or that we're used to the apples, which is to me entirely beside the point.

Still, I do enjoy watching you tie yourself in knots to reconcile your support for Bush with your conception of yourself as a classical liberal. It's sort of like watching the Green Bay Packers do Cirque de Soleil. But I don't think you're a knee-jerk Bush supporter, you're a knee-jerk Bush criticizer-criticizer. So when Bush does something that provokes outrage, your natural inclination is to critique the outrage. I can see how, when most everything he does provokes outrage, you'd be inclined to get into that mode. I just think that you'd be best off suppressing that impulse and assessing each instance of purported outrage on its merits. A lot of the outrage in the media is trumped-up overreaction, but a lot isn't — for my part, I think that things like Abu Ghraib and secret phone surveillance programs warrant real outrage.

While your argument here is interesting, I don't buy it.

Posted by: Phutatorius at May 16, 2006 05:46 PM

Mike, I'm not sure what you're even talking about. First, the program is bad because it's coming from this (evil) administration. Then it's bad because there's no accountability. Then it's bad because it's a bad idea and wastes resources.

You don't have any substance to your analysis other than opinions and unsupported assertions. (Although you do have cute cliches about haystacks.)

Would you support it if the administration did deserve the benefit of the doubt? Are you judging the program on the merits, or attacking it because it's done by the Bush Administration? How does the accountability of this program compare to any other historical instances of secret wartime surveillance? How would you craft a program that delivers the required operational security while maintaining accountability? How would you change the reported program to make it work with your constraints? Why should accountability in the short-run outweigh other goals (like catching terrorists)? Why isn't accountability in the long run good enough? What makes you think that it's a waste of time? Would you support it if you had data that showed it had thwarted lots of attacks? Why is this invasion of privacy unwarranted, but it's fine to track everything about us for income tax purposes?

Could you give some argument on the merits here?

Posted by: richard at May 16, 2006 08:19 PM


I'm not sure I made myself clear because I think you missed part of my argument. As a classical liberal, I believe that the national defense, including surveillance in war time, is the proper role of the state. I am comfortable with far more intrusion into our privacy and exercise of police powers in the pursuit of that legitimate aim than I am in the pursuit of the illegitimate aims of drug prohibition and/or redistribution of wealth.

I don't particularly have a problem with a vast database of phone calls that are being spidered by data mining algorithms. Especially when compared with stuff we live with for far worse, in my opinion, goals than catching terrorists or stopping attacks.

My point was not, simply, they've already taken a mile, let them take another.

Now, do I have a problem with it being done in secret? Somewhat. But I also realize that the effectiveness is partially tied to the secrecy of the operational details. Would I have a problem with it if it turned out that the government was using the data to hound antagonistic reporters, bully anti-administration protesters, or go after pornographers "while there in there"? Damn straight. I'd be pissed and feel betrayed yet again by the government.

And yes, you've properly diagnosed my Bush-criticizer-criticizer compulsion. I need help, obviously. But it's really hard to take the high road and "assess[] each instance of purported outrage on its merits". No one else does that... not by a long shot – they just screech on about Bushitler and "worst President ever!" without even acknowledging that there are trade-offs to be made. So why the hell am I held to that standard?

Posted by: richard at May 16, 2006 08:20 PM

Thanks for summarizing my post so concisely!

First, the program is bad because it's coming from this (evil) administration. Then it's bad because there's no accountability. Then it's bad because it's a bad idea and wastes resources.

Is there a logical inconsistency with the fact that this program is bad on three different but fundamental accounts?

One clarification: I don't think this administration is evil - that's a straw man. Try incompetent. But my point about the benefit of the doubt has to do with the way the program has been rolled out. Just over a year ago, Bush was outted about secret spying on US citizens. He and his administration offered blanket denials that calls were monitored within the US. Now we find out that calls in the US are being tracked.

Come on: his credibility is completely shot. There is no accountabiility for these secret programs and he is undermining the chance to have a reasonable debate about what new powers a president should have.

The substantive questions you ask are good. My answer is too glib, but I do believe it is correct. See today's (5.16) NYTimes editorial about network analysis for some further evidence. I can't give those questions the full attention they deserve here in your blog's comment space.

The haystack analogy is more than just a cute cliche. Whether it's choosing to occupy Iraq, or looking for nail clippers in airports rather than properly implementing container security, this Administration has (witteningly or unwittengly) diverted our nations resources in the war on terror foolishly.

I prefer a reasoned debate about policy, but I am completely with Phut in his analysis of your motivation on this one. Outtrage against this historically unpopular president is warranted on this issue. To let them get away with this is the deepest, most immediate threat to our way of life facing us now.

If you like this spying program, where do you draw the line on who is spied on and what is collected? How do you know whether this line is being enforced? What if someone you don't like or trust gets elected as President in 2008, how will you feel comfortable that he is held accountable for anying on you that he does on *you*?

Posted by: Michael W. at May 17, 2006 03:38 AM

(sorry for typng -- holding baby)

You should hold yourself to that standard because the very gut foundation for many, if not most, of your positions is that everyone else is reacting intemperately. So either be nicer to this apparently all-encompassing class of Bush-haters or distinguish yourself from their viscerality.

Second, I find it a bit oversimplistic to describe our system of taxation as directed at "redistribution of wealth." After all, what pays for all your beloved -- I'm sorry, unfairly embattled Administration's eleven-figure adventures overseas, or its Guantanamo installation, or the very program you're defending here? Financial disclosures that in part ensure that everyone kicks in an appropriate share to the national defense can't be all bad, can they?

Oh, I forgot -- President Bush has devised an ingenious scheme whereby we fund our national defense without actually paying for it. Never mind.

Look -- a not-so-partisan observer wouldn't describe the tax code as an engine primarily devised for wealth distribution any more than he would endorse a national database of every frickin' phone call Americans make on the ground that it may have some value in the national defense, never minding all the other possibilities for abuse you've described.

Assuming for a minute that [I have now relinquished control of Jack and can type at you with two hands] everything President Bush says about the program is true -- and really, what have we seen in these last five years to make us think we shouldn't take him at his word? . . . [sigh!] -- now that we have all this information, what's to stop some less scrupulous, say, Democratic President from using that information for ignoble purposes?

While it's true that knee-jerk Bush criticism is no way to live your life, it's not a solution either to become a knee-jerk Bush apologist. For starters, it's the Bush critics who are more likely, as a statistical matter, to be right in a given case. So why put yourself at that disadvantage, particularly when you so often have to bend yourself all cock-eyed to square the apology to how you really feel about the world? [Before you use those last few lines against me, understand that it was a joke.]

And finally, it's no good to be a knee-jerk anything, even if everyone around you has lost his head. Hold yourself to that higher standard. That's one reason we come here.

Posted by: Phutatorius at May 17, 2006 06:52 AM

Let me pile on some more. My needle in a haystack analogy is supported again. Here's an article that describes in more detail how the decision to use the "trailblazer" system rather than "thinthread" both unnecessarily violates our privacy actually hurts the proper functioning of the system. Here's the money quote:

"Sources say the NSA's existing system for data-sorting has produced a database clogged with corrupted and useless information."

NSA killed system that sifted phone data legally (Baltimore Sun)

Posted by: Michael W. at May 21, 2006 01:11 PM

OK, one more post and then I'll lay off until you reply or retreat to a new topic. This one is humorous, although perhaps a strangley relevant reference at

Q: What should I get my wife for her birthday?
A: Blue sundress from Calypso. Size 12. Also note that she likes to have her toes licked.

Posted by: Michael W. at May 22, 2006 12:03 AM

Not to pile on or anything, but there's this article, which was recently cited on the Volokh Conspiracy.

Efficacy is something worth considering, too.

Posted by: Phutatorius at June 1, 2006 01:34 PM