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Intelligence in the Digital Age: When the NSA Comes Calling

Public awareness can be frantic and fleeting. Just a few weeks ago, the press and public were in a frenzy over revelations about the NSA’s data collection activities. Since then, the outrage dwindled in the face of a nuclear deal with Iran, the Obamacare rollout, and Miley Cyrus with a singing cat. With new reports about the NSA tracking cellphone locations, however, public attention is poised to shift again.

The latest revelation from NSA systems analyst Edward Snowden’s stolen documents is that the NSA tracks cellular location data on millions of people around the world, collecting nearly 5 billion records a day, according to the Washington Post. The Post reports that the NSA does not intentionally track U.S. cellphone users but a “substantial amount” of domestic data is nevertheless “incidentally” collected.

The Post reports that the NSA does not intentionally track U.S. cellphone users but a “substantial amount” of domestic data is nevertheless “incidentally” collected.

That’s a tune we’ve heard before, such as with the collection of domestic Internet metadata. Even done unintentionally, any domestic data collected without a warrant is a technical breach of the Fourth Amendment; that is, the protection against unreasonable search and seizure, or more generally, the expectation of privacy. Will this latest revelation hold the country’s interest and concern?

While the NSA may not overtly collect domestic cellphone data locations, it does collect phone records on nearly all Americans – and it does so legally. This article series looks at the NSA’s data collection activities and what it means for the conflict between privacy and security in America. In this installment, we investigate the NSA’s domestic phone data collection and the public response.

 

Letter of the Law

The NSA collects data on millions of Americans’ phone calls. U.S. telecommunications companies hand it over, willingly following orders from the secretive Foreign Intelligence Surveillance Court (FISC), which authorizes the NSA’s data gathering activities. While the telecom companies may not challenge the NSA, other organizations have, though not with much success.

NSA

NSA’s phone data collection program has the approval of the the secretive Foreign Intelligence Surveillance Court (FISC). NSA photo

In November, the U.S. Supreme Court rejected a lawsuit brought by the Electronic Privacy Information Center (EPIC), which argued that the NSA’s phone data collection exceeded what is allowed under the law. There are other pending cases challenging the NSA’s data collection, and there is also legislation in Congress that, if passed, could reform the NSA’s activities. Yet, attempts to condemn the NSA’s phone data collection bump up against legal justification that has been on the books for decades.

In 1979, the U.S. Supreme Court ruled that when it comes to phone calls, U.S. citizens have no expectation of privacy. The court decided that callers willingly turn over data about their phone activity to the telecommunications company providing service, allowing government agencies and law enforcement to collect that data without the need for a warrant (which would necessitate probable cause). The FISC interpreted that Supreme Court ruling to mean the NSA can collect and use any data turned over to it by the telecommunications companies. The validity of this ruling has been publicly endorsed by the Department of Justice (DOJ).

Speaking in court about the NSA’s phone data collection from Verizon, Assistant Attorney General Stuart Delery said, “People assume that phone companies are recording phone numbers and how long the call lasted. We know that because all of us get the bills with those details.” Delery added that the information is only used in “good-faith investigations.”

Simply because the DOJ considers an investigation to be done in “good faith” does not necessarily mean the tax-paying public agrees. This is an example of one fault line in the privacy and security conflict. For the public to willingly share personal information, they require some context for its long-term use – as well as evidence that it is necessary. Yet, for the NSA and other intelligence agencies to effectively hunt and stop terrorists, they need to work in the shadows. Balancing security and privacy hinges on trust, and when a slew of secret reports about the NSA’s undisclosed activities hit the press, the public thinks twice about whether the scales have tipped away from the Fourth Amendment.

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Justin Hienz writes on counterterrorism, violent extremism and homeland security. In addition to his journalistic...