NSA Program Further Blurs Line on Privacy
Consumers Grow Accustomed to Surrendering Personal Data

By Arshad Mohammed and Terence O'Hara
Washington Post Staff Writers
Saturday, May 13, 2006

Phone companies know every number we dial. Grocery stores watch what we buy, search engines track what we look for on the Internet, banks count each penny we deposit or withdraw.

All of that information could become available to the government as it works to thwart terrorist activity.

This week's disclosure that the National Security Agency is amassing phone calling records for millions of Americans highlighted how blurred the notion of consumer privacy has become in the digital age.

It's difficult to know how much personal information may become available to government investigators because no single law governs how companies handle the data they collect about customers. Instead, there is a patchwork of statutes that prescribe varying rules on the privacy of everything from video store rentals and credit reports to medical data and phone logs. Beyond that, companies have privacy policies that are often impenetrable, leaving consumers unsure what rights, if any, they have.

American consumers have become accustomed to surrendering data in return for various conveniences -- discounts at the grocery store, targeted advertising online -- and some seem untroubled about sharing information with the government, particularly if it is in the interest of fighting terrorism.

"I wish I could say I was bothered by it but I'm not," said Jacques Domenge, a 28-year-old Potomac man who visited a Cingular Wireless store in Rockville yesterday to replace a stolen phone.

"If it's only done to protect people and find patterns that help the government find terrorists -- I don't think it will work, by the way, but let's say it will -- then I am all for it," he said, adding that he had no problems with Cingular -- or any other phone company -- turning over records.

According to a Washington Post-ABC News poll released yesterday, 63 percent of Americans said they found the NSA program to be an acceptable way to investigate terrorism, including 44 percent who strongly endorsed the effort. Another 35 percent said the program was unacceptable, including 24 percent who strongly objected to it.

"The value of fighting terrorism, in a lot of our research, seems to be more important to the public than what they perceive as violations of their privacy -- so far," said Frank Newport, editor in chief of the Gallup Poll and vice president of the Gallup Organization in Princeton, N.J.

Newport said views of the NSA program -- which was disclosed on Thursday by USA Today -- should be viewed in the broader context of Americans grappling with more and more of their personal data being collected and analyzed by businesses. "When we ask what's the most important problem facing the country, we don't see any signs that privacy is beginning to percolate up," he said.

For many, the appeal of online banking, quick Web searches and instant credit reports that allow a customer to walk into a car dealership and drive off a few hours later with a new set of wheels is irresistible.

"We love that. We love the cellphone. We love our EZ-passes. We love Google," said Jim Dempsey, a privacy expert and policy director at the Center for Democracy and Technology. "At the same time I think people have this deep sense of unease that information is being collected about them and they don't have control over it and they don't quite know where it is going."

It's nothing new for commercial institutions to share data with the government under certain circumstances, usually for law enforcement purposes.

If you've ever deposited more than $10,000 dollars in cash into your checking account, if you've ever moved a large sum of money from an overseas account into a mutual fund account, or even if you have an unusual life insurance policy, chances are your name and personal information are in a government database that is widely shared with law enforcement agencies.

Millions of private financial transactions -- only a tiny fraction of which involve criminal or terrorist activity -- are in the database maintained by a Treasury Department agency known as the Financial Crimes Enforcement Network. In its vast electronic files are transactions large and small, suspicious or mundane.

FinCEN, as the agency is known within law enforcement circles and the financial industry, analyzes the database to identify suspicious flows of cash to individuals or groups of individuals who might be terrorists, money launderers, drug dealers, illegal arms merchants or other crooks. It also provides the data to more than 165 federal and local law enforcement agencies such as the FBI and Secret Service and right down to a local sheriff. Even law enforcement agencies of foreign countries have access to the data under certain circumstances. The agency does this, under a system Congress and financial regulators developed over the last three decades, without oversight from the courts.

FinCEN officials say that protecting the privacy of the information they receive from financial institutions is one of its top priorities. But just how, or even if, FinCEN shares its data on millions of U.S. citizens with intelligence agencies such as the NSA or CIA that are generally prohibited from domestic surveillance is difficult to determine. FinCEN spokesman Steven Hudak declined to comment on the matter.

The phone companies that reportedly have provided records on tens of millions of Americans to the NSA declined to confirm or deny participating in any such program. But AT&T Inc., BellSouth Corp. and Verizon Communications Inc. said they cooperate with the government when there is proper legal authority.

"We must disclose information, when requested, to comply with court orders or subpoenas. We will also share information when necessary to prevent unlawful use of communications services, when necessary to repair network outages and when a customer dials 911 and information regarding their location is transmitted to a public safety agency," AT&T said in part of its extensive policy listed online.

Some lawyers said the exception "to prevent unlawful use of communications services" might be used to justify complying with the NSA program without a court order or warrant.

Without directly addressing the NSA report, Verizon yesterday elaborated by saying the company "will provide customer information to a government agency only where authorized by law for appropriately-defined and focused purposes . . . Verizon does not, and will not, provide any government agency unfettered access to our customer records or provide information to the government under circumstances that would allow a fishing expedition."

Qwest Communications International Inc., the fourth-largest local telephone company, declined comment on the NSA program. A lawyer for Joseph P. Nacchio, Qwest's former chief executive who left the company in June 2002, said he had refused to give call records to the NSA when no warrant or other legal process was provided to justify the government's request.

Two wireless companies -- Verizon Wireless and T-Mobile USA Inc. -- flatly said they had not taken part in the NSA program. Internet companies Google Inc., Microsoft Corp. and AOL also said they had not provided mass information to the government.

Even though Verizon Wireless said it did not participate in the program, its representatives have fielded calls from concerned customers. Colleen Holmes, a stay-at-home mother in Portland, Ore., reported an exchange with a Verizon Wireless customer agent that illustrated not only the dismay some Americans feel about the newly disclosed domestic surveillance but also the fear of terrorism that, for many, more than justifies the program.

Holmes said she was so angry about reports that the government was collecting telephone calling records on millions of Americans that she called Verizon Wireless to explore canceling her service and switching to Qwest.

"It's your constitutional right to voice your opinion," she quoted the customer service agent as having told her. "If you want planes to fly into your building . . . "

Staff writers Yuki Noguchi and Michael Rosenwald and staff researcher Julie Tate contributed to this report.

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