Verizon phone records are different from IRS scandal

This week’s revelations of widespread data gathering by the federal government have shocked many Americans.  Coming on the heels of the recent scandals about Justice Department spying on reporters and IRS agents harassing political opponents, the new information about America’s intelligence gathering activities have drawn widespread opposition and indignation.  There are important differences between the activities of the National Security Agency and the other scandals, however.

On Wednesday, leaked court documents demanding that Verizon turn over phone records to the federal government sparked an uproar over the NSA’s phone surveillance program.  On Friday, James Clapper, the director of national intelligence, released more details about the program.  Reported by the Associated Press, Clapper noted the program, which presumably includes other companies as well as Verizon, is reviewed every 90 days and the government is prohibited from indiscriminately examining the records of Americans.  The information obtained by the NSA does not contain the content of the calls, but only “metadata” such as the phone numbers involved, time, location, and duration of the call.

On Friday, the Washington Post also published leaked reports of PRISM, a secret program that analyzes internet traffic in a manner similar to the NSA’s examination of phone records.  According to the leaked documents, “e-mail, chat, videos, photos, stored data, VoIP, file transfers, video conferencing, notifications of target activity...log-ins, etc., online social networking details” were available from major internet companies.  A CNET analysis of the PRISM documents indicates that it is theoretically possible that the government has been reading private emails of American citizens.

Even though the amount of information collected by the NSA and PRISM is staggering, there is so far no evidence that it has been used to spy on Americans or intrude on their privacy.  Instead, it seems that the federal government has been engaged in a process called “data mining.”  Data mining is the use of computer programs to discover hidden patterns in data.  Private companies frequently use data mining to target advertisements to likely customers.  Cookies on websites and tracking software collect information about internet users, which is then sold to internet advertisers.  Computer programs can even “read” your emails to target ads to your screen.  Similar programs might be used to block suspicious credit card transactions based on the user’s past history. 

While the NSA is not interested in selling anything to Americans, it is presumably interested in suspicious contacts between the United States and known terrorists in other countries.  On Thursday, Mike Rogers (R-Mich.), chairman of the House Intelligence Committee, told Politico that “Within the last few years, this program was used to stop a terrorist attack in the United States.”  Rogers added, “It is a very valuable thing. It is legal.”

Rogers appears to be correct.  Both programs appear to be legal if they were implemented properly.  In 1979, the Supreme Court ruled in Smith v. Maryland that telephone users have no expectation of privacy with regard to telephone numbers dialed because telephone companies regularly track such information.  Likewise, CNET points out that the Foreign Intelligence Surveillance Act of 2008 and the Protect America Act of 2007 permit intelligence gathering of internet data.  The Protect America Act is limited to people “reasonably believed to be located outside of the United States” (Section 105A) and the Section 702 of the FISA Act clarifies that U.S. citizens or people within the United States cannot be targeted. 

On Friday, President Obama defended the NSA programs, saying, “Nobody is listening to your telephone calls.” In a PBS transcript, Obama continued, “By sifting through this so-called metadata, they may identify potential leads with respect to folks who might engage in terrorism. Now, with respect to the Internet and e-mails, this doesn't apply to U.S. citizens, and it doesn't apply to people living in the United States.” 

In a separate speech on Friday, transcribed by NBC Bay Area, Obama noted that “ if people can't trust not only the executive branch but also don't trust Congress and don't trust federal judges to make sure that we’re abiding by the Constitution, due process and rule of law, then we’re going to have some problems here.”

The other scandals of the Obama Administration have worked to diminish public trust in government, however.  Even before the recent scandals, Pew showed public trust in government at all-time low levels.  The reports of systematic abuses of power against the president’s political opponents (summary on Examiner.com) and spying on reporters have only heightened the crisis of confidence in the federal government.   A June 5 Rasmussen poll showed that an unprecedented 56 percent of Americans view the federal government as a threat to individual rights.  Even normally trusted agencies such as the FBI have been implicated in the Obama Administration’s apparent suppression of conservative groups.   Even the New York Times said Thursday that “The administration has now lost all credibility on this issue. Mr. Obama is proving the truism that the executive branch will use any power it is given and very likely abuse it.”

Unlike the data mining by the NSA, the allegations against Obama Administration in the IRS and DOJ media spying scandals include the specific targeting of American citizens.  The IRS has admitted that it specifically targeted conservative groups and an investigation by McClatchy News confirmed that no liberal or nonpartisan groups received unfair treatment.  Several IRS employees have said that their scrutiny and harassment of conservative groups was directed by IRS officials in Washington according to the Associated Press.  Likewise, Attorney General Holder personally approved the warrant for surveillance of Fox News reporter James Rosen according to MSNBC.  Unlike the NSA surveillance, which was apparently a legitimate program directed at foreign terrorists, the IRS and Justice Department programs were specifically directed at Americans and apparently had political motives.

The NSA’s surveillance programs are not new.  They have been public knowledge since 2005 when the New York Times published an account of the program.  However, the programs are likely viewed with more concern by many Americans due to the recent reports of spying and abuses of power against American citizens.  If the IRS and DOJ could illegally target Americans for political purposes, many are concerned that NSA data might be used for the same reason.  

Originally published on Examiner.com