We hear a lot of patronizing talk from President Obama and other officials about how healthy it is that we’re finally having a debate about surveillance and privacy, about security and freedom. The subtext, however, is clear: Get over it.
Interviewed Sunday on “Meet the Press,” former NSA director Michael Hayden offered a stunningly dismissive view of the Fourth Amendment: “We’re protected against unreasonable search and seizure, all right? It doesn’t say that all searches must be based upon reasonable suspicion. So now, unreasonable search and seizure depends upon the totality of circumstances in which you find yourself.”
My circumstances, in their totality, are these: sitting on the couch, minding my own business. What am I doing to deserve an electronic stop-and-frisk?
Thanks to Snowden, we know that the NSA not only pressures phone and Internet companies to hand over data but also secretly taps into fiber optic communications lines and sucks up as much information, both domestic and foreign, as it can swallow. And we learned this month, courtesy of The Post, that data concerning at least some Americans are ingested as the NSA collects some 5 billion cellphone location records per day.
Bills in the House and Senate to curb the NSA’s bulk collection of private phone data appear to have no chance — for now — of getting past the grandees of the intelligence committees, Sen. Dianne Feinstein (D-Calif.) and Rep. Mike Rogers (R-Mich.) both of whom have vigorously defended the NSA’s practices.
As for Obama, he has worked to give the NSA surveillance more of a legal foundation than it had under the Bush administration — but not to curb it.
I will stipulate that the officials who conduct, approve and oversee the NSA’s spying are well-meaning patriots. In this, I include the judges of the secret Foreign Intelligence Surveillance Court, who gave domestic snooping their blessing in eyes-only rulings that reinterpret our Constitution and laws in ways we are not permitted to comprehend.
But in the time since Snowden’s revelations, no one has effectively made the case that keeping a log of all our phone calls is really necessary. Officials have yet to provide convincing evidence that the program has discovered and prevented an act of terrorism in the United States.
The theory is supposed to be that only by assembling a big enough “haystack” of data can the elusive “needles” be found: patterns of calls, movements and connections that signal a potential terrorist strike. In reality, though, what seems to happen is that our intelligence agencies get some tidbit of information through other means, perhaps a name or a phone number, and then sift through the NSA data for evidence of a plot.
This scenario is actually a targeted search for which the spooks should have no trouble obtaining a warrant. Storing all that communications data in-house seems more a convenience than a necessity. It saves the trouble of acquiring specific chunks of data as needed from the phone companies.
As I read the Constitution, though, it’s supposed to be inconvenient for the government to invade our privacy.
A federal judge in Washington ruled Monday that the government’s widespread collection of telephone records is likely unconstitutional, but stayed a preliminary injunction while the government appeals.
Meanwhile, what can we do about it? For a start, we can demand to see all of the secret FISA court rulings that make domestic surveillance possible. When we learn what these documents say, privacy advocates can challenge them in open court.
We should let our elected representatives know that while domestic surveillance is currently deemed “lawful,” it is a betrayal of our traditions and values. We can let our phone and Internet companies know that we expect them to fight as hard as they can for privacy, not just in their legal arguments but also in using the most advanced encryption technology.
It’s simple: Either we demand our privacy — loudly — or we kiss it goodbye.
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