NSA Phone Records: We Know Tapping Phones Is Legal, But Is It Effective?


Although The Guardian's controversial article on Wednesday revealing NSA collections of Verizon phone records has had sparks flying yet again in Washington, the article has not uncovered anything new. The U.S. government has held blanket authority to collect call data from major phone carriers for years under measures held in the Foreign Intelligence Surveillance Act (FISA), and a recent court renewal authorizing access to massive Verizon phone records allows for more of the same. And as anger has been brewing, the Obama administration has been quick to defend such practices (gaining support from various senators and security personnel jumping to the administration's defense), calling government access to the phone records "a critical tool in protecting the nation from terrorist threats."

The question remains, after a year marked by terrorist scares and havoc, just how crucial is this tool for defending the nation against future attacks — and, if crucial, to what degree should Americans be willing to sacrifice their civil liberties to shore up our national security?

To be sure, critics have been quick to criticize the practices as appalling infringements on basic constitutional rights. Senator Rand Paul (R-Ky.) called the recent NSA collection of records an "astounding assault on the Constitution." A recent New Yorker blog posting has bashed the practice with hilarious jabs at both the president and phone company giant. 

And yet, FISA measures allowing for government seizures of phone records have been longstanding for years, and criticism is not falling strictly along party lines. 

"Everyone's been aware of it for years, every member of the Senate," said Senator Saxby Chambliss (R-Ga.), as Senate Majority Leader Harry Reid (D-Nev.) urged that everybody should "just calm down."

The phone surveillance program allegedly seeks out phone calls made between domestic lines and known terrorist locations globally. Since the 2005 revelation of the NSA's warrantless surveillance program, Congress has long debated the legality of the agency's domestic surveillance. In 2008, Congress amended the law governing warrants issued by the FISA court to permit it to issue broad warrants to collect communications from various categories of people, allegedly expanding its scope.  

Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.) has defended the program as fully "lawful" and fully "approved." “It began in 2009 — what appeared in the Guardian today, as I understand it, is simply a court reauthorization of a program. The court is required to look at it every three months.” The most recent court order in question is available here.

But beyond the constitutionality of the matter, many have been quick to discuss an entirely different angle of the matter — that is, the sheer practical utility of the practice in keeping the country safe. Can the practice be adequately defended by simple evidence that the records seizures are keeping Americans safe from real, pertinent terrorist threats?

While this point can be difficult to prove, House Intelligence Committee Chairman Mike Rogers (R-Mich.) told reporters at a news conference on Thursday that the NSA program helped prevent a "significant domestic terrorist attack" in the U.S. "within the last few years." 

A senior Obama official echoed these claims, defending the move by claiming the phone information "allows counterterrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, particularly people located inside the United States." 

“There have been approximately 100 plots and also arrests made since 2009 by the FBI,” Senator Feinstein has said. “Terrorists will come after us if they can, and the only thing we have to deter this is good intelligence.”

All in all, these types of arguments will be crucial to maintaining public support for the unpopular, uncomfortable practice of government snooping in phone records.

The problem is, without greater and more specific evidence of the practice's necessity and transparency in how these programs function, public criticism will be constant and rising. The practice is, on the surface, a painful infringement on some of the most basic privacy concerns. And yet, the fear remains that more transparency required to help justify these practices and their alleged counterterrorism power may undermine their ability to thwart terrorists, providing aggressors more information about these security processes which may help them to further subvert intelligence.

The push and pull of this issue is nothing new. Since 9/11 the long-standing tension between "civil liberties" and "security" has been interpreted as a cut-and-dry zero-sum equation, where defending one will necessarily impede the other. But more information helping inform more serious scrutiny into how certain practices may protect or harm citizens' rights and/or security can help provide hope for some middle ground and eliminate at least some of the discomfort Americans feel in light of apparently opaque government practices.

The best part about this controversy is that it will hopefully spark renewed attention and debate on the longstanding issue which has made numerous top policymakers and citizens alike uncomfortable for years. Americans are right to fear a slippery slope in which the "fear" of terrorist threat can justify massive violations of privacy for years to come. But the best way to preserve a healthy middle ground is for the Obama administration to more clearly communicate how many of these policies are "critical" to security. Without a clear and compelling national security argument, the policies can — and should — remain uncomfortable for this (and any) administration to defend.