The NSA call database

As usual, what’s appalling isn’t what’s done illegally, but what’s doable legally: creating a database of every phone call made in the country, for example.

So now we know about the even nastier program that made BushCo so determined to cover up the warrantless wiretaps. The NSA has been compiling a master database of all telephone calls made in the United States: not the content, but who called whom and when.

What’s truly appalling is that I don’t think it’s even illegal. If memory serves, Title III doesn’t cover what used to be called “pen registers.” USA Today suggests that the companies may be violating the Communications Act of 1933 by giving the information, but the NSA doesn’t seem to be breaking any laws by receiving that information. (Wrong: see update.)

Still, I don’t think the voters are going to hold still for it. Not with a President the country already distrusts.

Update Orin Kerr, who actually knows this stuff, says that there probably aren’t Fourth Amendment issues because the content of the conversations isn’t being captured, but that the statutory issues probably track those of the previously disclosed warrantless wiretapping on international calls. That is, the new program is illegal unless the Use of Force Resolution implicitly writes a loophole into FISA. The fact that when Qwest wanted to ask the FISA court for permission the government backed off is pretty convincing.

Let me take this opportunity to say how much I resent Orin’s arrogant, elitist assumption that just because he knows something the rest of us don’t his opinion is somehow entitled to additional weight. Doesn’t he understand that expertise is reality-based, and that reality has a well-known liberal bias? The country has twice voted for ignorance over knowledge (well, if you want to be technical about it, the country voted that way once and the Supreme Court did so the other time). So Orin’s claim that knowledge is somehow better than ignorance is not only unpatriotic but undemocratic. So there!

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

17 thoughts on “The NSA call database”

  1. The data gathering really bothers me, but a lot of people feel that, since they are not a "bad guy", it does not bother them.
    Which makes me want to slap them upside the head.

  2. Most of the people whom this bothers surely weren't voting Republican in the first place.
    For this issue to affect my vote, I would need to see some way in which it could adversely affect someone other than terrorists or serious criminals. (I don't buy from Amazon.com because their privacy policy bothers me, but I don't personally know anyone else who cares.)
    If an NSA employee discovered and exploited a future merger or an instance of adultery, maybe, or if the government found gas station owners calling each other and accused them of price collusion, or discovered one pager being called by dozens of people and tried investigate its owner for drug dealing, I might be worried. But such an event would need to actually happen before this call database would start to bother me.
    I can't think of any single phone call that I made or could make, or that I believe any acquaintance could make, that could possibly be damaging for the government to know about.

  3. Actually, pen registers are covered under Title III. 18 U.S. Code 3121: "Except as provided in this section, no person may install or use a pen register or a trap and trace device without first obtaining a court order under section 3123 of this title or under the Foreign Intelligence Surveillance Act of 1978". The standard laid out in sec. 3123 is less than probable cause (basically, likelihood of obtaining relevant info). But I don't see any provisions for pen registers without a court order, unless there's another provision in the code I'm missing (possible, I'm not an expert; but FISA wouldn't likely help here, given the scope).
    That said, it's not clear from the linked article that pen registers are being used here, or that laws applicable to them are relevant here. Sounds like the phone companies are just handing over records. The Communications Act does, as the article suggests, prohibit this kind of disclosure as a general matter, but I'm pretty sure CALEA requires disclosure with an administrative subpoena; don't know the exact scope of that obligation, or whether NSA can issue such subpoenas.

  4. Actually, from reading the article you've linked to, it's pretty clear that the NSA didn't think this was legal at all:
    Unable to get comfortable with what NSA was proposing, Qwest's lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.
    The NSA's explanation did little to satisfy Qwest's lawyers. "They told (Qwest) they didn't want to do that because FISA might not agree with them," one person recalled. For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the U.S. attorney general's office. A second person confirmed this version of events.

  5. Please see Orin Kerr's (previously of the Volokh Conspiracy) analysis of the issue on http://www.orinkerr.com. His conclusion is that the program is probably not unconstitutional, but is quite likely illegal, for reasons which he provides in his post.

  6. Dom touches on a question that's been bugging me ever since the story came out – just what commerical value does such a massive social network database have?
    I can't imagine that grafters would sell searches on the QT to a divorce lawyer. But mergers?
    Not of course that anyone in this administration would even dream of abusing it like that. Of course not!

  7. I hope you don't take for granted that this is the penultimate of nastiness we are going to find out about the NSA wiretapping/spying programs. Do you think that an administration that would collect this information is not likely to use it? So far I have seen no evidence that the law, the Constitution or the other branches of government can restrain Bushco from doing whatever they please.

  8. Depending on how the recording is done (and I know how the NSA would want it done if they preferred for terrorists not to be able to evade surveillance simply by using calling cards) these record dumps/pen registers/whatever could well be recording any touchtone produced during the course of a given call. That would capture quite a bit of information in addition to who calls whom.

  9. The more secret the program is (was), the more likely it'll be used for no good. What worries me is that we've seen the HSA, DoD & CIA have given contracts to shady subcontractors, guys with criminal records or whose conduct recently earned them a record. So, who knows who's really looking at this stuff? If the police get a warrant, you never hear about officer X getting busted for committing identity theft off of info he learned on a wiretap. Who knows who they have looking at this stuff? It could be civil servants or subcontracted to some guy who's sending it to your worst nightmare.

  10. Dom: "I can't think of any single phone call that I made or could make, or that I believe any acquaintance could make, that could possibly be damaging for the government to know about."
    If there's one abiding principle to understanding human behaviour, it is that knowledge, however gathered, will be used for personal gain. This, in capitalism, is usually a good thing, and makes all us better off. Sometimes it isn't, and that's why we have laws about extortion, bribery, and other forms of improper coercive acts.
    When the data is governmental in nature, it becomes different, because the state is sovereign, with special protections, because of its monopoly of force, and because of its veils of secrecy.
    The same impulses toward personal gain are still active in governmental actors. To claim otherwise is to ignore all of the graft, corruption and more subtle self-serving we're all well aware of. So, the question becomes not if, but how that massive database will be exploited.
    "I'm not doing anything wrong" is not an answer here. Just imagine how much damage a corrupt civil servant could do leaking this info to identity thieves.
    And that's before you consider outside actors gaining ilicit access without insiders helping. If you know anything about government IT, again, the question becomes not if, but how and when.

  11. The more I think of Dom's comments,"I can't think of any single phone call that I made or could make, or that I believe any acquaintance could make, that could possibly be damaging for the government to know about", the more I think of my relatives who lived or have lived in various Soviet block countries, including East Germany.
    They were very clear that any innocuous information could easily get into anyone's hands who held a grudge, or needed a promotion above you. Dirty tricks and all. You didn't need to be the government to do this, or even in the government service, just well placed or know someone who knew someone. Don't think a simple inquiry to the doctors office couldn't be turned against you, or checking out a potential vacation spot as evidence of spying or extortion or anything else you wanted to smear someone with.
    And how convenient to have it all in one spot. There was a good reason that during WW2 the Dutch quietly asked us to 'accidentally' bomb a building in The Hague, near the Peace Palace, that held all the personal records of the citizenry. We did.
    I tell you, it scares me to listen to my aging mom, who lived in Berlin all her life until she came here after WW2, to say, "I've seen all this before". And then you no longer wonder how a highly educated and civilized country like Germany could have fallen. Bit by bit, piece by piece, all small seemingly logical little steps to 'protect the homeland'. A word to the wise. Just because you can't imagine it, don't think someone else can't, and then act on it.

  12. I tell you, it scares me to listen to my aging mom, who lived in Berlin all her life until she came here after WW2, to say, "I've seen all this before". And then you no longer wonder how a highly educated and civilized country like Germany could have fallen. Bit by bit, piece by piece, all small seemingly logical little steps to 'protect the homeland'. A word to the wise. Just because you can't imagine it, don't think someone else can't, and then act on it.
    The problem is, i can imagine it, but the side that could be for this supposed openness (ie Dems) have a few privacy shadows of its own, Echelon and Carnivore come to mind.
    I say this is a strawman. Not because it is not of high concern, but because the opposition has been so irrational at a time we need rationality the most. We should demand the end of this program maturely.

  13. Re: Kleiman on Kerr
    "Ignorance is Strength"
    The War on Terror is like peace in that Osama is not going to defeat us but we will never defeat terror so it will be permanently useful as an excuse.
    All we need is Freedom is Slavery and we got the trifecta.
    Reminds me of the unfortunate Andrei Amalrik who wrote "Will the Soviet Union exist in 1984). If Orwell had started writing the book in 49 not 48 it would have been entitled 1994 and Amalrik would now be considered a world historic genius.
    Scares me to think that if Orwell had started the book in 1960 he might have called it '06 and be seen as a prophet as well as a great man and writer.

  14. What are they doing with the database? One possibility, shown to be feasible by Google as it's the basis for their success, is to construct a yes/no matrix of phone links – and there are roughly twice as many web pages as people in existence, so it's less difficult; and then calculate the eigenvector to give the analogy to PageRank. You can find out quite fast by such methods who the gatekeepers are.
    No, the NSA shouldn't be doing it; there's no legal analogy. The Web is a form of publication and Google provide a public service by indexing it. Phone calls are private comunications like letters.

  15. If the NSA asked the telcos to provide this info, and it was criminal for the telcos to provide it, and the telcos did provide it to NSA, it's hard to see how this did not also constitute conspiracy.

  16. A simple question: isn't the contacted party part of the content of any correspondence ? Or does an encoded unique sequence of numbers erode an identity claim ?

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