Before the internet, we used to keep the names and telephone numbers of our friends and acquaintances in a little address book. Young people who dated a lot had a ‘little black book’ with telephone numbers of past and potential dinner partners.
Nowadays the equivalent is an iPhone address list, often kept in the cloud, or buddy lists for chat rooms. The Washington Post reveals, based on the leaked powerpoint slides of Edward Snowden, that the National Security Agency has been scooping up 250 million such contacts a year, mainly abroad, but it inevitably has gathered millions or tens of millions of such records from Americans.
Back in the 1980s, if the Federal government had wanted to see the address book I kept in a kitchen drawer, it would have had to apply to a judge for a warrant. But now the NSA can gather that information at will. The prohibition under which it operates, of not actively spying on Americans, is clearly impossible to implement in a world where communications bounce around the world from server to server.
Apologists for the NSA surveillance allege that it is careful not to use Americans’ private information for any other purpose but tracking down terrorists. That is, the gathering up of our address books is innocent because the NSA is an honest broker and a good steward of our information.
But let us start the debate elsewhere. The real question is, what does the Federal government have a right to? No one thinks it has a right to our smart phone address lists or other contact lists. Any judge you asked in the 1980s would have wanted solid evidence of wrongdoing before he or she authorized the FBI to barge in and confiscate your hand-written address book. Why should it matter what medium the address book is written and stored in? Pen and paper or zeroes and ones on the internet? The answer is no. The Federal government does not have a right to our private information unless there are strong grounds to believe that a crime is being committed.
Moreover, the idea that the government employees and contractors who have access to these NSA records are all trustworthy is absurd. Address books showing a person’s circle are extremely revealing. They could be used for insider trading. We already know that the DEA has been given access to the NSA records and has used them to prosecute people over pot buys, and that the government has systematically lied to the judges about where their information came from.
They don’t have a right.