June 10, 2013 10:49AM

In Its Bubble of Secrecy, the National Security Bureaucracy Redefined Privacy for Its Own Purposes

Rep. Jim Sensenbrenner (R-WI) is nothing if not a security hawk, and this weekend he decried the NSA's collection of all Americans' phone calling records in a Guardian post entitled, "This Abuse of the Patriot Act Must End." On Thursday last week, he sent a letter to Attorney General Eric Holder demanding answers by Wednesday.

It also became apparent over the weekend that the National Security Agency's program to collect records of every phone call made in the United States is not for the purpose of data mining. (A Wall Street Journal editorial entitled "Thank You for Data Mining" was not only wrong on the merits, but also misplaced.) Rather, the program seizes data about all of our telephone communications and stores that data so it can aid investigations of any American who comes under suspicion in the future.

Details of this program will continue to emerge--and perhaps new shocks. The self-disclosed leaker--currently holed up in a Hong Kong hotel room waiting to learn his fate--is fascinating to watch as he explains his thinking.

The court order requiring Verizon to turn over records of every call "on an ongoing daily basis" is a general warrant.

The Framers adopted the Fourth Amendment to the Constitution in order to bar general warrants. The Fourth Amendment requires warrants 1) to be based upon probable cause and 2) to particularly describe the place to be searched and the persons or things to be seized. The leaked warrant has neither of these qualities.

A warrant like this would never be adopted in an open court system. With arguments and decisions available to the public and appeals going to public courts, common sense and simple shame would foreclose suspicionless data-gathering about every American for the benefit of future potential investigations. 

Alas, many people don't believe all that deeply in the Constitution and the rule of law when facile promises of national security are on offer. It is thus worthwhile to discuss whether this is unconstitutional law enforcement and security practice would work. President Obama said last week, "I welcome this debate and I think it's healthy for our democracy."

A starting point would be to know how much it costs to collect and store the data for these purposes, but that's secret. The controls on access to data as it's held would also be good to understand intimately so that we can gauge the risk of abuse. Nope--secret.

If costs like these could be tallied, detailing each investigative success would be a way to predict and compare benefits. Advocates of this mass surveillance have summarily concluded that it worked in a few cases. That's not enough information. The rest is secret.

All this secrecy would require us to accept the assurances of a few members of Congress and the intelligence community that this program works and that everything will be fine. Doing so would be libertarian and constitutional malpractice.

It has become increasingly clear that officials in the national security community have equivocated about what their programs do. In March, for example, Senator Ron Wyden (D-OR) asked Director of National Intelligence James Clapper: “Does the NSA collect any type of data on millions or hundreds of millions of Americans?”

“No, sir," Clapper replied. "Not wittingly. There are cases where they could inadvertently, perhaps, collect, but not wittingly."

At an American Enterprise Institute event last July, General Keith Alexander was asked point blank whether the National Security Agency’s new, billion-dollar Utah installation would hold the data of American citizens. He responded flatly: “No. ... [W]e don’t hold data on U.S. citizens.”

These statements, which are untrue in the open world, suggest to me a number of self-deceptions that the closed world of the intelligence community seems to have allowed itself.

'Telephone numbers are not information about U.S. citizens' is one. In fact, telephone numbers are better identifiers than names because names are reused while phone numbers are distinct.

'We don't "collect" information until we access it' (and variants thereof). One senses that rules for accessing the calling data are strict, so these officials have permitted themselves to say that they don't collect it or hold it.

These self-deceiving thoughts are consistent with signs over years that the intelligence community's internal discussions about privacy have been self-deceiving. Last week, for example, a statement issued by the Director of National Intelligence defending massive, nationwide surveillance of American's phone calling appealed to "numerous safeguards that protect privacy and civil liberties." That appeal is as earnest as it is off the point. Privacy is not produced by installing some suite of protections around information that has been seized by the government to be maintained forever in secret databases.

We've glimpsed the thinking inside the bubble before. In October 2007, Principal Deputy Director of National Intelligence Dr. Donald Kerr spoke about privacy at the Geospatial Intelligence (GEOINT) Symposium in San Antonio, Texas.

"Too often," he said, "privacy has been equated with anonymity; and it's an idea that is deeply rooted in American culture. . . . But in our interconnected and wireless world, anonymity--or the appearance of anonymity--is quickly becoming a thing of the past."

Instead, he proposed to think of privacy as "a system of laws, rules, and customs with an infrastructure of Inspectors General, oversight committees, and privacy boards on which our intelligence community commitment is based and measured."

'Give us the data. We'll be really careful with it. That's your privacy protection.' Kerr's audience may have found that jumbled logic appealing, but it's wrong.

Alan Westin passed away in February after a sterling life of privacy research, advocacy, and advisement. In his seminal 1967 book, Privacy and Freedom, he defined privacy as the claim of individuals "to determine for themselves when, how, and to what extent information about them is communicated to others." This is the heart of privacy: control over personal information.

Imagine a water conservation program in which the government would monitor the showering habits of all Americans. A tiny camera in each American bathroom would collect imagery of what goes on within, but by law and emphatically stated policy that imagery would never be accessed except under a secret court's order.

Privacy problem? You bet. Because Americans' control of information about their lives would be taken from them. Instead, it would rest with a government body, operating under rules that could change and personnel that could violate those rules--a lesson of the recent IRS scandal.

Data seized by the government and held in secret data warehouses according to secret rules is not within the control of the American people. It is not private.

"Secrecy is for losers. For people who do not know how important the information really is," Daniel Patrick Moynihan wrote. The national security bureaucracy and the Foreign Intelligence Surveillance Court are in a secrecy bubble that has undercut their ability collectively to protect the country in all its values. The secret court that Congress created--issuing secret, essentially unreviewable rulings--has allowed DNI Clapper, General Alexander, and others to deeply misconstrue privacy, substituting a version they like. But their version is nothing like our version and nothing like the version protected by the Constitution's Fourth Amendment.