Last week, my colleague Roger Pilon and Prof. Richard Epstein co-wrote a Chicago Tribune op-ed defending the National Security Agency’s bulk metadata collection program. I had not, initially, intended to respond directly: Cato scholars often disagree among themselves—as Roger and I long have in this area—and normally it suffices for us each to state our own affirmative arguments and let readers decide for themselves which is most convincing. However, as I now see that some observers—and in particular, a significant number of libertarians—have mistakenly taken this to mean that “Cato” supports the NSA program, which continues to dominate the news, I feel it’s necessary to say something here about why I (and, as I believe, the majority of my colleagues) reject that view.
In an area where so much remains secret, it is impossible to have a sensible debate unless we are at least clear on the public facts. So before I address their broader arguments, it is necessary to correct a few important factual errors in the Tribune piece. Pilon and Epstein write:
The names linked to the phone numbers are not available to the government before a court grants a warrant on proof of probable cause, just as the Fourth Amendment requires.
This is incorrect. Nothing in the law would require a warrant to get the name associated with a number, and the public statements of FBI Director Robert Mueller directly contradict this claim.
At the risk of stating the obvious: phone numbers can often be associated with names by a simple Google search, and the NSA and FBI have access to far larger databases that would likely make such an association trivial.
But even if that weren’t the case, 18 USC §2709 allows names, addresses, and other “basic subscriber information” associated with a number to be obtained via a National Security Letter based on a certification of “relevance” to an investigation, with no need for judicial approval. As Director Mueller explained at a recent hearing, this is precisely how such information would be obtained here, assuming it were not already available.
Indeed, once that warrant is granted to examine content, the content can be used only for national security issues, not even ordinary police work.
This is also incorrect. Under 50 USC §1801, the minimization procedures governing information acquired from electronic surveillance shall “allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes.” As the FISA House Report makes clear, this does not refer to terrorism or espionage related crimes, which can already be retained and disseminated as “foreign intelligence information,” but rather to information about crimes “totally unrelated to intelligence matters.”