Fine Print: Questions about security and privacy

Walter Pincus
Reporter November 18, 2013

Two interesting questions came up last week, both related to national security.

The first concerns what is more invasive for Americans: The National Security Agency storing all American telephone toll records for the past five years — and available for possible checking if called by an overseas phone linked to terrorists — or Facebook employing users’ profile pictures, locations and other personal information in advertising?

I ask because there seems to be an intensifying disconnect between the public and the government, and several issues involve national security.

Government distrust is a key factor in that disconnect, which isn’t new to anyone who lived through the Vietnam War, Watergate and Iran-contra, or more recently the invasion of Iraq and Saddam Hussein’s alleged weapons of mass destruction.

Adding to the issue is the public’s lack of accurate information, some of it a result of the government’s failure to communicate in a timely way because information is considered classified. Other reasons include inaccurate statements by officials or media stories the government said were misleading.

An example: June’s initial news stories based on documents from former NSA contractor Edward Snowden that focused attention on several bulk data collections. The one that most concerned Americans was the “215 metadata program,” which collected all U.S. phone toll records that included numbers called and duration of each call.

The 215 program did not collect names of phone subscribers, locations of the numbers or the contents of the conversations. Stored by the NSA, the agency insisted the data could only be searched when a U.S.-based phone was called by a foreign phone associated with a terrorist or terrorist group. If further investigation of the U.S. phone seemed warranted, it was turned over to the FBI, where a court warrant was required for a wiretap.

Disbelief, however, followed — especially after Snowden said during a video interview, “I, sitting at my desk, certainly had the authority to wiretap anyone, from you, or your accountant, to a federal judge, to even the president if I had a personal e-mail.”

Snowden added that the metadata could be used “to go back in time and scrutinize every decision you’ve ever made. Every friend you’ve ever discussed something with. And attack you on that basis, to derive suspicion from an innocent life, and paint anyone in the context of a wrongdoer.”

Four months later, 39 percent of about 1,000 people polled thought the NSA’s 215 metadata program included listening to calls, according to Amy Zegart, co-director of Stanford University’s Center for International Security and Cooperation. The center sponsored the research.

The government must take some responsibility for the misconception. It failed to disclose in general terms what it had been doing. Since 2006, when the 215 program was authorized by the Foreign Intelligence Surveillance Court under the Patriot Act, it had remained a closely held secret, even after it was disclosed that year in a USA Today report.

Little attention was paid when officials described multiple levels of oversight, including the NSA, the Justice Department, the FISC and Congress. Early on, the FISC was described as “a rubber stamp.”

That has been dropped recently with some declassified FISC opinions and current and former court members’ public comments.

Let’s compare attention to the NSA’s collection and use of metadata with Facebook’s announcement Friday of changes to its privacy policies that make clear the company can include users’ profile pictures, location and other personal information in advertisements.

How many Facebook users read its long privacy policy? Last week’s changes came out of a Federal Trade Commission case in which Facebook was originally alleged to have deceived users about how their information would be shared. A class-action suit charged the firm with violating users’ privacy rights.

It’s worth remembering President Obama’s comments after the initial Snowden material appeared.

“I think it is important to recognize that you can’t have 100 percent security and then also have 100 percent privacy and zero inconvenience,” he said.

Last week’s other challenging question: What crime deserves greater punishment, leaking a national security secret — in this case, an ongoing clandestine CIA operation — or distributing child pornography?

Donald Sachtleben, a retired FBI agent, was sentenced Thursday to three years and seven months in federal prison for giving classified information to an Associated Press reporter. Sachtleben was also sentenced to eight years and one month for distributing and possessing child pornography.

Sachtleben was already under investigation for pornography when he leaked the information to the reporter. It was only after a year of seeking the leaker that the FBI focused on Sachtleben, just hours after gathering phone toll records of AP reporters and editors.

The former FBI bomb specialist’s leak that the agency was examining a bomb that terrorists planned to use to blow up a U.S. airliner led to the AP reporting that the CIA had broken up an al-Qaeda plot. The federal government has said that disclosure interrupted a complex clandestine operation with international partners that hoped to find the Yemen-based terrorist who built the bomb.

In court last week, Sachtleben said he was not acting as a whistleblower, nor was he seeking any financial reward.

U.S. Attorney for the District of Columbia Ronald C. Machen Jr., who prosecuted the AP leak case, said last week that Sachtleben will spend “more than a decade behind bars for betraying his duty to protect our national security and collecting child pornography.”

Do the lengths of the two sentences represent the relative importance to society of his two crimes?

Let’s be clear, all child pornography is horrendous. And the leaking of some national security secrets can risk the safety of untold numbers of people.

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