Friday, May 12, 2006

IF YOU'RE OUTRAGED that major telecommunications companies have been turning over the call records of millions of customers to the NSA, you should not be. You consented to it.

That is the argument being used by Bush administration lawyers to justify the revelation in yesterday's USA Today that the government has been feeding a huge database with the phone call histories of tens of millions of Americans.

One government lawyer who has participated in negotiations with telecommunications providers said the Bush administration has argued that a company can turn over its entire database of customer records -- and even the stored content of calls and e-mails -- because customers "have consented to that" when they establish accounts. The fine print of many telephone and Internet service contracts includes catchall provisions, the lawyer said, authorizing the company to disclose such records to protect public safety or national security, or in compliance with a lawful government request.

"It is within their terms of service because you have consented to that," the lawyer said. If the company also consents, "and they do it voluntarily, the U.S. government can accept it."

Apparently, most Americans can accept it, too. An instant poll taken last night revealed that 63% of Americans have no problem with the government collecting Americans' phone call records to analyze patterns for terrorist activity, if the conversations are not being listened to or recorded. And 66% of respondents said they would not mind even if it was their own phone call history being collected.

Since we are the reality-based community, we can't just gloss over these results. We have to acknowledge that, at the moment, the American people may be willing to give Pres. Bush the benefit of the doubt when he says creating a database of all Americans' calling records is essential for national security. Clearly, large numbers of Americans do not see any reason to doubt the president when he insists that only phone numbers, not names and addresses, are being collected; and that the NSA is not monitoring conversations or recording the calls themselves.

That said, I was surprised when I read Steve Soto's post saying that progressive bloggers and Democrats should not push this issue right now:

We can raise red flags all we want on our side of the aisle about the violation of basic freedoms and privacy that are front and center with the Bush Administration's behavior here. But in this post-9/11 world run by an administration that has manipulated fear to a point that a large number of Americans are scared children who would rather give up some rights in order to be protected from the bad guy under the bed, it appears that the public is fine with intrusive and illegal programs like these until it is shown that Bush did something with this information other than build a database to be used in identifying suspect calling patterns.

At this point, it may be all we can do to get Bush and Hayden on the record here saying that privacy is not being violated and that the information is not being used for other purposes. This is why there are Democrats inside the Beltway who believe that a focus on this issue at this time, and away from other issues where Bush is clearly vulnerable such as gas prices, Iraq, and the general direction of the country are counterproductive heading into the fall election. Sure, in a perfect world Democrats shouldn't be afraid to lead on principle even if the public doesn't share our concerns yet. But the goal is to win in November and not do anything that steers that effort away from favorable terrain into areas where the familiar arguments can be used once again to dissipate support for a change in November.

That strategy is all but part of the Democratic Party's genetic code, isn't it? And so far the only thing that Democrats' "fear of leading on principle" has accomplished is give the Republican majority in Congress a very effective weapon to use against them and make them toe the line.

Glenn Greenwald asks why people are putting so much stock in a poll that asks Americans how they feel about the government collecting and mining Americans' phone call records on the very same day that the news broke.

Somehow, The Washington Post -- on the very same day most people learned about the new NSA data-collection program -- managed to conduct a poll which purports to show that "63 percent of Americans said they found the NSA program to be an acceptable way to investigate terrorism." The reaction is painfully predictable. Bush followers are celebrating with glee, as though the issue is resolved in their favor and they won, while some Democrats are quivering with caution, urging that this issue be kept at arm's length lest they take a position that isn't instantaneously and overwhelmingly popular.

I didn't even read about this story until yesterday morning and it took awhile to process the various issues and implications. I'm still doing that. I have a hard time believing that less than 24 hours after this program was first revealed by USA Today, most Americans had informed themselves about what this program is, why it is a departure from past practices, and what are its potential dangers and excesses -- let alone had an opportunity to hear from those who are opposed to the program explain why they are opposed to it.

The whole point of having political leaders and pundits is to articulate a point of view and provide support for that view in order to persuade Americans of its rightness. That process changes public opinion on every issue, all of the time, often dramatically. None of that has occurred here. Let's have a few days of debate over whether Americans actually want the Government to maintain a permanent data base of every call they make and receive -- to their girlfriends and boyfriends, their doctors and lawyers, their psychiatrists and drug counselors. And let's have a debate about whether the law prohibits this program. And then let's see where public opinion is.

Even the pollsters suggest that the results of an overnight poll should be taken with a grain of salt:

This Washington Post-ABC News poll was conducted by telephone May 11, 2006 among 502 randomly selected adults nationwide. Margin of sampling error for overall results is plus or minus four percentage points. The practical difficulties of doing a survey in a single evening represent other potential sources of error in this or any other overnight poll.

Booman names the real problem:

We have a problem. The American people support the NSA's program to track every phone call we make.
What this means is that the Bush administration has succeeded in scaring the American people sufficiently that it is a difficult political position to take to stand up for our fourth amendment rights. To be clear, the program that was revealed by USA Today yesterday is not a clear-cut violation of the fourth amendment. And it is not a clear-cut violation of FISA. The problem is that there is no court or Congressional oversight, and that the information gathered under the program can be easily cross-referenced with other databases to violate our privacy and our rights.

In other words, it is not the program itself that is the problem, but the program in concert with other programs. It's also probably true that the telecommunications companies that cooperated violated privacy agreements they made with their customers (but that is not a constitutional issue).

It's a very disturbing reality that the American people support extreme invasiveness into their personal privacy. This allows Bush a wide berth to abuse the system and not pay a political price. It also intimidates Democrats that would otherwise raise holy hell. But, there is only way to deal with this problem, and that is to join up with libertarians and fight back with everything we've got.

Ezra Klein thinks that at first glance this program may not look all that alarming -- especially in a world where personal privacy seems to be a quaint relic of the distant past. People need context -- and that doesn't come overnight:

I'm not terrifically surprised to see snap polls showing surprising support for the NSA's latest step into Orwellian territory. First, this is a bit quick for any impressions to be cemented. My guess is the public will look, over the next couple of weeks, for experts and pundits to give them cues on how to react. That the administration is poring over your call logs is a bit weird, but sans context, not the most unsettling thing in the world. Given the furor in the Senate, on the news, and even on Hannity and Colmes, I'd be surprised to see opinions remain so favorable.

But maybe it won't. The advent of the internet has left us a world where personal information is shockingly accessible. Indeed, half the time, we're the ones clamoring to publicize it, starting Live Journals and MySpace profiles. In a realm where the people you date expect to be googled before lunch, where we offer our credit card numbers and home addresses to virtual vendors, and where Amazon greets you with a personalized list of books you'll like reading, the proliferation of public information may have inured Americans to outrage over something as seemingly mundane as call logs. We'll see.

Amygdala thinks the program doesn't go far enough:

My phone contract is with Qwest, by the way. Qwest explains:

The telecommunications company Qwest turned down requests by the National Security Agency for private telephone records because it concluded that doing so would violate federal privacy laws, a lawyer for the telephone company's former chief executive said today.

Radical crazies. All right-thinking Americans must immediately not just sign up with a patriotic carrier that will report everything they say to the government, but each American himself must compile a weekly activity report on everything she or he has done, and everything they've seen their neighbors and workmates do that week!

Don't neglect reporting on people you've passed on the street, or seen in buildings or stores! We must protect America!

Only the guilty have something to fear.

Read The Rest Scale: 3 out of 5. Remember: it's lawful for the government to do things they're afraid to ask the courts about for fear they'll be turned down! Never question that! (Or we'll report you.)

Riggsveda at The American Street thinks Americans are ready to have their safety even more fiercely protected:

63% of Americans said they had no objection to being probed anally by government sniffer machines if it meant the security of the United States would be ensured, including 44% who said they would volunteer for surgical castration to prevent terrorists from watching American TV.

A slightly larger majority -- 66% -- said that allowing National Security agents to slowly roast their first-born children in front of their eyes was an acceptable way to prevent terrorism, and 65% said it was more important to let George Bush burn the Declaration of Independence and shove the Constitution up John Conyers' butt "for just a little while" than to selfishly hang on to their pitiful last shreds of privacy and freedom, "even if it intrudes on privacy."

51% said that Bush was such a scary guy that they would gladly agree to live under the interstate overpass and let Alberto Gonzales have their homes to house shock troops in, as long as they were allowed to have a bathroom break once a day.

Only 28% said they would rather breathe in ricin fumes than to give George Bush one more undeserved day of occupation in the Oval Office, and less than 17% could remember the definition of the word "democracy."

A total of 502 randomly selected brain-damaged adults were interviewed Thursday night for this survey.

It may not be that simple, though. The Carpetbagger Report notes the puzzling fact that the poll respondents expressed stronger support for civil liberties than one would expect from people who don't mind if the government looks at all the phone calls they make.

When poll respondents were asked specifically if it would bother them if there was a record of their phone calls, 66% said it would not.

Oddly enough, the public was not willing to give up on privacy rights altogether. Nearly half of poll respondents (45%) said the government is not doing enough to protect Americans' rights as it investigates terrorism. How does one explain how so many people want more privacy protection but are unconcerned about records of all of their phone calls going into a secret NSA database for unknown reasons? Beats me.

It's also worth noting that, when asked if they thought it was right or wrong for the news media to have disclosed this program, 56% said it was the right thing to do. So apparently, even though right now most Americans have no problem with the government collecting their phone records, they still think they have a right to know it's happening.

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