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Confusing Ability with Intent: Why the NRA Should Not have Joined Forces With the ACLU

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The recent controversy concerning alleged “unconstitutional” National Security Agency (NSA) collection of vast telephone “metadata”—records already collected by private sector telecommunications companies that identify what phone numbers were connected with what other phone numbers along with when the calls occurred and how long they lasted—has sadly been driven by misinformation, misunderstanding, and ignorance of both fact and law.

If not corrected, al Qaeda and its allies will be the primary beneficiary.

The Supreme Court held in the 1979 case of Smith v. Maryland that the Constitution permits the warrantless collection by the government of such telephone metadata, so the underlying constitutional issue is settled.  But the reasoning of the critics is by itself terribly flawed, a point beautifully illustrated by the Amicus (“Friend of the Court”) brief that the National Rifle Association (NRA) filed earlier this month in support of an American Civil Liberties Union (ACLU) lawsuit against the Director of National Intelligence aimed at halting the NSA program.

The NRA’s logic is summarized on page 3 of the brief.  Noting that in 1958 the Supreme Court held that the First Amendment prohibits governments from compelling private organizations (in that case, the NAACP) from disclosing their membership lists, the NRA argued:  “The mass surveillance program . . . potentially providing the government . . . with the means of identifying members and others who communicate with the NRA and other advocacy groups . . . .”

One might, with similar logic, note that the Fifth Amendment protects the right to “life,” and that “murder” is unlawful in every state and by federal statute as well. Ergo, arming FBI hostage rescue teams and other federal law enforcement entities with lethal weapons “potentially” provides them with “the means of” murdering large numbers of innocent Americans.  By that logic, perhaps we ought to shut down our military and police forces; and (NRA take note), we should outlaw the private ownership of firearms—lethal weapons that empower each of the estimated 80 million Americans who own firearms to murder their friends and neighbors.  Surely everyone can agree that murder is a bad thing; and, if we draw no distinction between capability and intent, this may make sense.

But let’s not stop there.  The NRA brief goes on to express concern the large NSA database might conceivably be used to identify Americans who make telephone calls to NRA headquarters.  Since the NRA sends magazines and fund-raising letters to its members, perhaps we should shut down the Postal Service as well—because it turns out that a tyrannical government already has the means of identifying NRA members without bothering the NSA.

The point is, there is a tremendous difference between having the “ability” to do something and the “intent” to actually do it.  Thomas Paine reminds us: “When we are planning for posterity, we ought to remember that virtue is not hereditary.”  We do need to be vigilant against government abuse.  But surely the goal is not to deny the government any authority that might conceivably be abused.

Thus far, no one has provided credible evidence that the government has abused the large database of telephone metadata the NSA has accumulated.  The charge is it could be abused.  The critics fail to distinguish between the twin tasks of “collecting” and “examining” data.  It is often said that a key business of the Intelligence Community is to “connect the dots.”  But before those “dots” can be connected, they must be collected.  That’s what NSA has been trying to do.

When a firearm used to commit a crime is recovered, law enforcement officers routinely dust it for fingerprints.  Legible prints that are obtained are often sent to the FBI, which maintains a database of more than one billion prints and computer systems that facilitate an expeditious search for a possible match.  Having served in the military and gone through several background checks for security clearances and other purposes, there is some chance that when the FBI computers run their search they will pause for a micro-nanosecond to examine my prints.  Is that really an infringement upon my civil liberties?  Perhaps I’m living a dull life, but I am not in the least offended that an NSA computer might briefly glance at my phone metadata while trying to prevent the next 9/11.  (If my phone has been communicating with foreign terrorists, I want them to know that so they can identify arrest the bad guys—or at minimum caution me so I won’t inadvertently be used to further their schemes.)

Many people seem to think that NSA databases can be accessed at will by large numbers of (perhaps politically partisan) bureaucrats.  That’s simply not true.  Section 215 of the 2001 PATRIOT Act authorizes the government to collect “business records” that are relevant to “an authorized investigation.”  Deputy U.S. attorneys had this power to issue administrative subpoenas without specific judicial approval to obtain information for Grand Juries since long before 9/11 and the PATRIOT Act, and courts have consistently upheld the practice as lawful.  We are not talking about the NSA keeping data that under the Fourth Amendment would require a warrant—the phone records do not include a single word of content, nor even the names or addresses of the people to whom the phone numbers are assigned.

The system works like this.  If a foreign terrorist is killed or captured, and a cell phone is found in his possession, the NSA can run his number through the database to identify telephone numbers with which his phone has been communicating.  No one gets arrested because their phone number may pop up, but the database may allow the NSA to identify phone numbers that regularly communicate with phones associated with several known or suspected terrorists—which may in turn lead to FBI investigations that might prevent the next 9/11 attack.

It is important to understand that access to such databases is restricted and strictly monitored.  Searches may only take place when there is “reasonable suspicion,” based upon “specific, articulable facts,” that a specific phone number is associated with a foreign terrorist organization.   During all of 2012, telephone metadata for roughly 300 subscribers (less than one per day) was searched.  Data that are more than five years old are deleted.

Each search has to be carefully justified in writing, and each approved search must be submitted to the FISA court for further review. There is extensive oversight to guard against abuse, starting at NSA itself and also including the Pentagon, the Justice Department, the White House, and Congress.  No fewer that fourteen different federal judges have approved the program since 2006.  By comparison, law enforcement agencies collect hundreds of thousands of telephone billing records (containing similar metadata) each year without warrants, and the average American is about one thousand times more likely to have his telephone metadata examined by law enforcement than by NSA.

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