Clarence Page: Little new in snooping

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When is a scandal not really a scandal? Many are shocked to hear that the government, in its pursuit of terrorists as relentlessly as Wile E. Coyote chases the Road Runner, is massively snooping into our phone records and popular social networks without search warrants.

But is anybody really surprised to hear that the National Security Agency — an agency so secret that its nickname is “No Such Agency” — is taking more than a casual look at people who, for example, frequent jihadi websites and price one-way tickets to Yemen?

Revelations that the NSA is conducting massive surveillance of cellphone calls and Internet traffic have divided the country into two camps, those who are outraged that the government has been gathering phone records and those who are greatly relieved.

Oh, yes, there’s a third group that doesn’t know what to think because they don’t know the difference between a wiretap and “metadata collection.”

Metadata is information about your phone calls but not their content. It includes the numbers, time of day and duration and perhaps even the locations of calls you made, but not audio of what was said during the call.

“Metadata” is the subject of Scandal No. 1. A document obtained by the British Guardian shows a court order issued by a secret federal court sought “metadata.”

You don’t need a warrant, courts have ruled, because of the “third-party doctrine.” When you dial a phone number, this doctrine says, you voluntarily provide information to a third party, the phone company, right? And the phone company is then free to share it with the government.

As one of my favorite experts, David Simon, creator of the HBO police drama The Wire, points out in his blog, there’s nothing new in the government’s capture, retention and analysis of raw telephone or Internet metadata that police reporters haven’t been doing since the birth of wiretaps.

“The only thing new here, from a legal standpoint, is the scale on which the FBI and NSA are apparently attempting to cull anti-terrorism leads from that data,” says Simon, a former police reporter for the Baltimore Sun. “But the legal and moral principles? Same old stuff.”

As a former police reporter for the Chicago Tribune, I agree. The NSA phone sweeps are a large-scale version of police tracking the calls — but not content — on pay phones (Remember those?) that were frequented by drug dealers.

Those who fear constitutional breeches should first read the Constitution. It is not biblical scripture. It is often conditional, as in the Fourth Amendment’s protections against “unreasonable searches.” The Ten Commandments, by contrast, do not permit “reasonable adultery.”

Then there’s Scandal No. 2. According to a top-secret document obtained by the Washington Post, the NSA and FBI are tapping directly into the central servers of nine leading U.S. Internet companies, including Google, Facebook, Apple and Microsoft.

There, the Post said, the agencies are extracting audio and video chats, photographs, e-mails, documents and connection logs that enable analysts to track foreign targets.

That last part is important because tracking foreign targets usually doesn’t require a warrant, either.

Further, James R. Clapper, director of National Intelligence, has disputed what he called “significant misimpressions” in the Post and Guardian stories. He stressed that the government doesn’t “unilaterally obtain information” from the computer servers of the companies and that “Prism” is a new technology for old well-known missions. In other words, nothing to see here, folks.

Still, we ask, is Edward J. Snowden, who leaked secret NSA surveillance documents to spark a public civil liberties debate, a hero or a traitor? Where you stand depends on which secrets you think are worth keeping — and what kind of searches are quite reasonable when balanced against looming threats to public safety.

Part of the problem is the massive growth of the intelligence community and its classified documents. A headcount ordered by Congress two years ago of how many government workers and contractors have “secret” level clearance came up with the jaw-dropping figure of more than 4 million, including more than a million awarded “top secret” clearance.

CLARENCE PAGE’s column is distributed by Tribune Media Services Inc.


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