May 2006

First things first. For those interested in yelling at your Member of Congress, Privacilla.org has info and advice.

Now that I have a respite from my whirlwind NSA-spying media tour, I’m asking myself (and you): Who is to blame?

I’ve spent years arguing that market processes are the best way to get privacy on the terms consumers want it. And for all my troubles, I get this?! Businesses regularly share information with the government, even informally. A privacy outrage, no?

Well, let’s see. I think it is. But I’m not consumers. I’m just a consumer. The average consumer is a little more concerned with terrorism and proportionately more sanguine about privacy. That’s why a key to winning this privacy debate is getting the risk of terrorism in perspective.

My favorite article ever is John Mueller’s A False Sense of Insecurity? Read the whole thing. (If I wanted to read a whole thing, I wouldn’t be on a freakin’ blog right now.) How about this: If you are outraged by talk of ‘George Orwell’ and ‘privacy’ while there’s a war on, then shut up, sit down, and read the whole thing. 😉

But back to some self-criticism. I am a proponent of the free market, but three out of four large telecommunications providers, in whose tender mercies I would place your privacy, sold us out. Time to commit sepuku? Begin my David-Brock-style conversion from libertarian to . . . not libertarian? Are the Communications Act, the Stored Communications Act, the Cable Act, and all kinds of other regulatory statutes with privacy mandates our saviours?

Not so fast, because comparisons are best made between comparables, not between real and ideal. It’s not like the phones only just started getting used for surveillance recently. The Nation reports this week that telephone and telegraph companies began assisting the NSA during the 1940s. When Ma Bell owed its existence to a government-enforced monopoly, was it in a position to bite the hand that feeds? No. Indeed, it probably let that hand go a lot of places that we would characterize as “inappropriate touching.”

So before anyone goes lambasting the private sector for this – and no one has, but it might be deserved – I wonder whether it is the decreasing control of telecommunications by government (combined with some significant overreach by the current Administration) that has brought the practice of mass surveillance to light.

Qwest, the one hold out against the NSA, recognized the privacy interests of its customers. The importance of privacy to many consumers may have moved Qwest from on-the-fence to refusing the NSA. Now, the seam that opened up between Qwest, the others, and the NSA is one into which cable telephony can move, for example. Their superior (statutory) protection for privacy is in the paper today. VoIP providers like Skype have a real opportunity to point out that communications on their services are encrypted end-to-end, making it difficult – though not impossible – to snoop on the content of calls.

I am not proud today of the telecommunications sector. And I hasten to remind people at a time like this that I am an advocate of markets, not businesses. I’m putting this post in the “When Capitalists Go Bad” category for a reason.

But – with the caveat that this thought deserves more thinking – I believe this failure of businesses to protect privacy is more a product of government arm-twisting and excess than the failure of markets to serve consumers’ demands for privacy which, as I said above, are unnecessarily diminished by the “War on Terror.”

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Orin Kerr has a lengthy analysis of the latest NSA spying revelations. He concludes that it doesn’t violate the Fourth Amendment but likely runs afoul of several statutes. This paragraph didn’t strike me as being quite right:

The legality of the program under FISA is somewhat similar to the legality of the NSA program we learned about a few months ago. The key question is, did the monitoring constitute “electronic surveillance” under FISA, and if so, does the Authorization to Use Military Force allow it? Note that FISA’s definition of “electronic surveillance” goes beyond accessing only content information and extends to some non-content information. If the program did involve “electronic surveillance” under FISA, then we’re right back to the same question that has been raised about the legality of the known NSA domestic surveillance program. If that’s right, your views of the legality of the new NSA program will pretty much coincide with your views of the legality of the NSA program disclosed a few months ago.

It seems to me that one of the arguments frequently deployed by the president and his supporters is that the wiretapping program only targetted calls international calls. On this theory, FISA doesn’t apply at all because FISA only governs domestic surveillance. I don’t think I buy that agument, but I can easily see someone who does concluding that the wire-tapping program is legal, but this new program is not.

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Remember how the administration said it was only monitoring international calls? Well, never mind. It turns out that the NSA is building a database of every phone call made in the United States:

The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans–most of whom aren’t suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.

“It’s the largest database ever assembled in the world,” said one person, who, like the others who agreed to talk about the NSA’s activities, declined to be identified by name or affiliation. The agency’s goal is “to create a database of every call ever made” within the nation’s borders, this person added.

Having the NSA know who I called is less creepy than having them all recorded. But it’s still creepy. And probably illegal.

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