Your Reporting May Be Monitored For Accuracy

The most annoying aspect of the most recent NSA revelations, other than the shrill histrionics of those who claim that it's further proof that the days of Big Brother are indeed upon us, was the flagrantly misleading manner in which the story was being reported, especially early on. The first report that I read on the subject yesterday was from ABC News and it was titled, Government Monitoring About 200 Million Americans' Calls with the sub-title, "USA Today Reports That NSA Wiretapping Is More Far-Reaching Than Thought.

The impression given from the headline and sub-header was that the government is listening to the phone conversations of millions of Americans, especially with the link to previous NSA wiretapping controversy. Now, one could quibble about the meaning of the word "monitor." Here's a definition that seems relevant:

v. mon·i·tored, mon·i·tor·ing, mon·i·tors

v.tr.

1. To check the quality or content of (an electronic audio or visual signal) by means of a receiver.

2. To check by means of an electronic receiver for significant content, such as military, political, or illegal activity: monitor a suspected criminal's phone conversations.

3. To keep track of systematically with a view to collecting information: monitor the bear population of a national park; monitored the political views of the people.

4. To test or sample, especially on a regular or ongoing basis: monitored the city's drinking water for impurities.

5. To keep close watch over; supervise: monitor an examination.

6. To direct.

Clearly the story's title would lead you to believe that the second definition is appropriate, when in fact, the monitoring that was actually going on in the NSA program is much closer to the third definition of the word. And in general, when you hear the word "monitor" used in regard to telephones, most people would assume that it means listening in. When you call a customer service line and hear the message"This Call May Be Monitored For Quality Purposes", you naturally assume that someone might be listening to the conversation.

Not until the 15th paragraph of the ABC story do you learn that:

According to USA Today, this massive NSA data collection program is used to analyze calling patterns that may be helpful in tracking down terrorists. This part of the spy program does not include listening to or recording Americans' conversations.

Not exactly what I would consider quality journalism.

Meanwhile, Daveed Gartenstein-Ross addresses the legality of the NSA program at National Review Online:

FISA distinguishes between "electronic surveillance," which collects the substantive content of electronic communications, and "pen registers," which collect only the addressing information of electronic communications. Although the language of FISA is somewhat convoluted, information about what calls were being made that doesn't involve listening in on the discussions themselves should be classified as a pen register rather than electronic surveillance under the statute.

However, the definition of "pen register" in FISA shows that the statute doesn't regulate the government with respect to the technology at issue here. FISA states that the regulations governing pen registers do not "include any device or process used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by such provider." That is precisely what was alleged in this case: The sources who spoke to USA Today said that the three participating telecommunications companies handed over information that was collected pursuant to their regular billing procedures. FISA does not implicate such action.

Nor would the Fourth Amendment, which protects Americans from unreasonable searches and seizures, make the conduct in question illegal. The Supreme Court held in Smith v. Maryland (1978) that government collection of phone numbers called does not violate the Fourth Amendment. The Court reasoned that callers cannot have a "reasonable expectation of privacy" in the numbers they dial:

[W]e doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must "convey" phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills...

[E]ven if [a caller] did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation is not "one that society is prepared to recognize as 'reasonable.'" ...This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties...[W]hen [a caller] used his phone, [he] voluntarily conveyed numerical information to the telephone company and "exposed" that information to its equipment in the ordinary course of business. In so doing, [the caller] assumed the risk that the company would reveal to police the numbers he dialed.

In sum, the alleged government data collection described by USA Today does not, on its face, violate the Fourth Amendment or FISA. Of course, the fact that a government action is legal doesn't settle the case: There may still be ample room to oppose it. But there is a rush among broad sections of the Left to declare illegal any Bush-administration policies with which they disagree without being troubled by such trivialities as what the actual, settled law says. Here, this reflexive reaction appears dead wrong.

Imagine that.