Questions About the NSA's Data Mining

Although the Bush administration hasn't formally acknowledged it, it seems clear that at some point after 9/11 the NSA began a data mining operation in which the NSA examined phone numbers called by tens of millions of Americans with the aim of creating "a database of every call ever made." Email addresses and internet use might also be subjects of the program (I'd be surprised if they weren't). The ostensible goal of the operation is to tease out and expose terrorist networks.

Revelations about the program are acting almost as a political litmus test. The Wall Street Journal thinks CIA Director nominee Michael Hayden, who ran the program at the NSA, should get a Medal of Freedom; Frank Rich of the New York Times calls him "yet another second-rate sycophant."

Here are the questions that I think will take us toward the heart of the matter:

1. What is the program's benefit? That is to say, does it expose terrorists?

I'm not sure. On the one hand, I doubt terrorists would be so stupid as to use traceable phones to call each other. On the other hand, terrorists, like other criminals, sometimes do remarkably stupid things. I can imagine terrorists believing they could call each other as long as they used code in their conversations and not realizing that it was the fact of the calls themselves that might lead to exposure. Or they might use pay phones, but those pay phones could then be monitored more closely.

Even if the program could theoretically expose stupid terrorists, though, we still have to ask whether it could adequately single them out from under mountains of false positives. Think of how many phone calls are made on any given day in the United States. That's a lot of data. Even if the program could narrow the likely hits down to only a few thousand, that's still a huge number of people for the FBI to investigate.

Without hearing from someone with expertise in the field of data mining, for me the answer to the question, "Does it expose terrorists?" is, maybe.

2. What does the program cost? That is to say, how much of a civil liberties intrusion does it represent?

It seems that the program hasn't involved listening to the content of phone calls (that was the earlier NSA program, exposed in December); rather, it seems the program's focus has been solely an examination of who's been calling whom. How invasive this feels is going to vary from person to person. My own feeling is, it's a gray area. If the government comes into my house, that's an intrusion. If they look at my house from the street, it's not. If they go through my garbage, that's a gray area (BTW, there is judicial law on all these scenarios. I'm not (yet) talking about the legal outcomes; I'm talking about how these government activities feel to me as an individual). Similarly, if the government listens to the content of my phone call, that feels like an intrusion. If they observe me with a cell phone, it's not. If they examine records to see whom I've been calling, that feels like a gray area. Your mileage may vary.

Another aspect of the program's cost is its potential for abuse. Frank Rich, in his May 14 New York Times column, suggests that the program was aimed not at al al Qaeda, but at domestic leakers. My guess would be slightly different: I imagine the program was indeed originally targeted at AQ, but regardless of whether if was found useful for its original purpose, I can all to easily see it being continued for, shall we say, domestic purposes. This is just speculation, of course, but when I imagine what it's like to be part of this embattled administration, with a sub 30% approval rating, no way out of a foreign disaster of its own making, and upcoming midterm elections, I can easily imagine the desperation and paranoia that would make certain players turn the NSA on the "traitors" in the government and media who are causing all their problems.

But my take in this regard is partly a function of my distrust of the current administration. If you trust Bush et al and believe they're good men, you might not share my concerns. Still, I think a program like this one would lead almost any administration to abuse, and I'm not much more comfortable with it in the abstract than I am in its particulars.

(By the way, remember when the first NSA domestic-surveillance program was revealed last year by the New York Times? Bush assured us that "one end of the communication must be outside the United States." I wondered at the time how, given the program's objectives, such a limitation could possibly be relevant. It now seems that it wasn't true, either.)

Let's stop here for a moment. Part of the reason reactions to the program are so divided, I think, is because it's inherently difficult to measure the program's benefits (the administration claims that the program and others like it have saved thousands of lives, but I place no weight at all on those claims given the source. Maybe the program has saved lives, maybe not. The administration has too much incentive to lie to be trusted on this) and individual impressions of the cost are idiosyncratic. Accordingly, people are coming to radically different answers to the cost/benefit question.

3. But there's another important question. Regardless of its cost effectiveness, is the program legal?

The leftist reaction is, "Of course it's illegal. The Foreign Intelligence Surveillance Act, which Congress passed in 1978, created so-called FISA courts that must issue warrants before Americans can be subjected to eavesdropping. The administration conducted this program in the absence of FISA warrants. Ergo, illegal."

The rightist reaction is, "All the NSA did was look at what phone numbers were calling what phone numbers. That's not eavesdropping. No eavesdropping, no need for warrants. Ergo, legal."

I'd like to know more before answering. But I will say this: I've never been able to understand why the administration refused to get FISA warrants for the program that was disclosed in December, a program that apparently does involve actual eavesdropping. I can't think of any legitimate reason for the administration's failure to do so. The FISA courts almost never even refuse a requested warrant, and the FISA act provides even for retroactive warrants in cases where an agency like the NSA has to act too quickly to get a warrant in advance. The administration has already blown the "but this wasn't eavesdropping" argument with the first program. It's too late for them to claim it here.

In fact, it's probably inaccurate to think of these as two separate programs. First, the NSA plays connect-the-dots with the phone numbers. Next, it listens in on phone numbers that look suspicious. Same program, different steps.

One other thing I'd like to know is, why were the phone companies turning over these records in the absence of subpoenas? Qwest refused, but AT&T, Verizon, and BellSouth cooperated. Was this out of a sense of patriotism? Were there implicit threats involving government contract awards?

What do you think? What am I missing?