WASHINGTON – I made a phone call at 12:01 a.m. Monday, and it felt good. For the first time in years, the number I dialed on my iPhone was not captured and stored in a massive government database.
Since it was an inconvenient hour, I called my office phone, knowing it would go to voicemail. But I wanted to make the point that an important principle was again being honored: Unless I’m suspected of some involvement with terrorism, it’s none of the National Security Agency’s business whom I talk to. Or when. Or why.
I owe my reclaimed privacy largely to Sen. Rand Paul’s weekend political stunt, which forced the Senate to meet in a rare Sunday session. Paul drew attention to his presidential bid by blocking an attempt by his fellow Kentucky Republican, Majority Leader Mitch McConnell, to muscle through a reauthorization of the USA Patriot Act.
Taking advantage of the Senate’s arcane rules, under which a single senator can gum up the works, Paul also nixed McConnell’s various fallback positions – a brief reauthorization, an even briefer reauthorization, the extension of some provisions but not others. McConnell finally agreed to support a piece of legislation he had previously opposed: the House-passed USA Freedom Act, which would end the vacuum-cleaner collection of telephone data but renew some other NSA surveillance powers.
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When the relevant parts of the Patriot Act expired, the NSA lost its legal authorization to track the usage of my phone – and yours. Assuming the agency obeys the law, the balance between liberty and security has been sensibly rebalanced.
Is the NSA deprived of the ability to trace the phone activity and contacts of suspected terrorists? Not in the least.
Authorities still have the ability to search the communications records of anyone suspected of being a terrorist, being in contact with terrorists or in any way threatening our security. The secret Foreign Intelligence Surveillance Court and the telecom companies routinely oblige such requests. This is how the Constitution says things should work: first a suspicion, and only then a search.
What the NSA lost is the right to compile a gargantuan, all-encompassing mountain of data – the “haystack” of our domestic and international phone calls – in the hope of teasing out subtle patterns that reveal nefarious activity. It’s a seductive vision: Total knowledge must equal total security.
But in all the debate about the Patriot Act, the intelligence community has not claimed that a single fruitful terrorism investigation has originated with the phone data. Instead, analysts have delved into the haystack to corroborate and expand upon information obtained by other means – questioning prisoners, cultivating informants, examining seized documents, following active leads.
Under the USA Freedom Act – a bipartisan measure that will likely pass the Senate – call records would remain with the phone companies. The NSA and the FBI could still easily obtain access to any data they had reason to examine.
Does it make a difference if records of our phone-calling habits are held by the telecom companies or by the government? It does to me.
I know the only motive of Verizon, AT&T, Sprint, T-Mobile and the other phone companies is to make money. I also know that if I don’t like the way one of them uses my private information, I can switch carriers. The worst that can happen is that I get hit with an early termination charge.
I trust that the NSA’s motive is to keep me safe. But government is different because it has the power to deprive citizens of their liberty, their property, even their lives. That is why we have the Bill of Rights, and the Fourth Amendment prohibits unreasonable search and seizure. Short of emigrating, after all, there is no way to switch to a competitor.
We can switch our elected officials, though. Paul’s performance may have been self-serving – all right, it was definitely self-serving, since he has been lagging in the presidential polls – but it had the effect of pushing President Obama, McConnell and much of the Senate to embrace the Freedom Act. Assuming it passes and gets signed into law, we still won’t have as much privacy as we did before 9/11. But we will have moved the needle substantially.
No one wants the nation to suffer another terrorist attack. But keeping track of everyone’s private calls was an overreach that weakened liberty without enhancing safety.
Pick up the phone and tell someone the good news. For a change, nobody’s peeking over your shoulder at the number you dial.
Eugene Robinson’s email address is email@example.com.