Guests: David Rivkin, attorney in private practice and former Justice Department official during the Reagan administration; Eric Lichtblau, reporter, New York Times; Marc Rotenberg, executive director of the Electronic Privacy Information Center and professor of information technology law at Georgetown University Law Center.
Diane Rehm: Last week, USA Today revealed the NSA has been reviewing information on millions of domestic phone calls. Some say the invasion of privacy is a small price to pay for what could be critical information on suspected terrorists. Others question both the program's effectiveness and its legality... Eric, tell us what's new that USA Today revealed in its article last week by Leslie Cauley, then followed up by the New York Times and other newspapers. What is new about what we're hearing now?
Eric Lichtblau: Well, what's new is the scope and extent of the program and also some of the internal debate that the USA Today story revealed. Particularly interesting was the fact that Qwest, a West Coast regional carrier, had refused to participate in this program. We have known for some months. As in December I wrote a story about the basic framework of this NSA program. About a week after we revealed the warrantless eavesdropping program, we also wrote that the NSA had tapped into the heart of the telecom industry and was doing vast data mining operations to trace phone calls. USA Today put some meat on the bone, really, in terms of numbers. They said that they had access to tens of millions of phone logs, that's a majority of the phone calls logged in the country, and are arguably building a database of every phone call ever recorded.
Rehm: We're talking about trillions of minutes on telephone lines, are we not? Talking about cell phones? Talking about land lines... everything possible?
Lichtblau: Theoretically, yes. There are still an awful lot of questions about how exactly this is being used. But certainly the intent here is to amass what some are calling the biggest communications database ever compiled. So that the NSA and counterterrorism officials can determine who is calling whom, both within the country and between the US and overseas.
Rehm:... Marc Rotenberg, what do we know about the phone calls that are being reviewed? Is it simply telephone numbers? Is it key words? What is it?
Rotenberg: Diane, at this point I think we need to rely on the reporting that's been provided by Eric's articles in the New York Times and also the USA Today story. We know, for example, from the December report in the New York Times, that there were interceptions in communications involving American citizens without judicial authority. And that was really quite extraordinary. The President made the claim at the time that this was a highly targeted program and that it involved individuals with links to Al Qaeda which I think to the public seemed to be a pretty good argument to defend the program. Although, from a legal perspective, it still left it highly suspect. Most of the legal scholars and members of Congress who thought about the description of the December program involving intercepted communications were very troubled. They said that the Foreign Intelligence Surveillance Act, the FISA, would have provided the appropriate legal means to get access to the information. Now, the USA Today story describes slightly different information. It's most likely the telephone toll record information -- it's the detail associated with a particular communication, not the communication itself. This can be very useful. It tells you who talked to who, for how long, at what point in time. If you gather up enough of this data, presumably you may be able to draw some inference that's useful in intelligence investigations. The problem here also is that there are legal rules that apply to this disclosure. For example, the Stored Communications Act, which is part of the 1986 amendments to the Federal Wiretapping Law, basically say that this information should not be disclosed unless one of the exceptions is satisfied. None of the exceptions seems to apply. So we're back again in a situation where an extensive surveillance has been undertaken, I would say, without legal authority.
Rehm: ...Turning to you, David Rivkin. There have been statements that everything that has been done thus far is legal. But no specific laws have been cited. Can you help us understand why you believe what's gone on thus far is legal?
Rivkin: Sure. We need to start with the proposition that there is no private information that is being accessed in this program. And it's interesting -- because of course both the New York Times and USA Today mention though unfortunately not in a lead-in that there's no content analysis. There's no information to which people have any expectation of privacy. What we're talking about are business records, business records that have been compiled in the course of people going on about their lives, the kinds of foot prints we leave in a modern society. It's interesting that the purpose of this effort is not at all to look at who is calling whom. That's a misnomer. It's to establish broad patterns. The very fact that this information is being accessed en masse, anonymized, if you will, is an excellent way of insuring privacy. The real reason you're doing that is to look at the calling patterns. For example, at any given point in time, we have one person, one single stationery phone calling a bunch of mobile phone numbers. You can call your husband or your children. There's a certain standard percentage of those calls -- let's say in the course of one hour -- occurring for a very short amount of time. If you suddenly have a substantial deviation from that norm -- where five or six or ten people make several dozen phone calls to a bunch of other people on mobile phones and the calls are very close together for a very short time -- it may presage planning for a terrorist attack where one person's activating a bunch of people in his sleeper cell. This is just one example. And it's kind of a simplistic, primitive example. There's a variety of patterns you can establish that first can perform the proverbial role of the canary in the mine. It can alert people that something is about to happen. Conversely, the reason you store this information is if you know something bad happens a month from now and you go back and you look at what was the pattern of communications that time, some of the patterns that have not been obvious become obvious to you and you can refine on a going forward basis. Pattern recognition...
Rehm: ...David, the question I asked was, where is the legal justification for this kind of listening in and monitoring -- however you want to define it. Where does that legal justification exist?
Rivkin: First of all, it's not at all covered by FISA. FISA has nothing to do with it. This is not something that requires a warrant because the information is a) not private, and b) not individual-specific. You have a government going to a bunch of businesses and asking for business records. Under most organic statutes, including telecommunications statutes that provide all sorts of privacy protections, the exceptions: government agencies have the right to issue administrative subpoenas, to access business records in cases of national security. But it's not obvious that a subpoena was necessary here because the businesses shared the information voluntarily which they're entitled to do. Nobody's privacy rights were violated. To me the notion that the government always has to proceed in accordance with a detailed regulatory scheme, especially in the national security area, is quite frankly silly.
Rotenberg: I think David makes a good point in the abstract. It is true that there are lots of circumstances under which the police can go to private parties, sometimes called "third parties," and obtain information without legal authority or judicial review. But the telephone network, and information concerning telephone customers really occupies a unique position in US privacy law. We have privacy safeguards for this kind of information going back 70 years. The Communications Act of 1934, in fact, created very strong privacy protections. Since that time, the laws have been constantly updated as technology has advanced and business practices have emerged. The key point has always been -- and this is where I think David is not correct -- when the government goes to a telephone company for business records about its customers, there has to be some legal basis, there has to be some judicial review. And if there's not an exception, it's unlawful.
Rehm: Eric Lichtblau: tell me why Qwest stayed out of this.
Lichtblau: Well, there concern as we understand it is that there was not the proper legal authority and that there was not a warrant used and they were uncomfortable with their legal liability as a result of that.
Rehm: So, the other telephone companies felt no such hesitation?
Lichtblau: I think there was some hesitation. I think that this was a big step for any of the companies to take. The three that we know about were ATT, Verizon, and Bell South. Qwest, for reasons involving internal debate with their lawyers, decided that it was a risk they were not willing to take.
Rehm: Eric, I've heard David explain this whole concept of patterns emerging, and deviations from those patterns. At the same time, is it simply to look at numbers? I mean, numbers without the data behind them don't quite make sense to me. I don't understand it!
Lichtblau: What we're essentially talking about here is a vast data mining operation. And it's important to understand that they are not, in this particular operation, listening to the phone calls...
Rehm: ...How do we know that?!
Lichtblau: Well, we don't know what we don't know! You're right! But what we know so far is that the NSA has the capability through complicated algorithms that not more than a handful of people at Fort Meade really understand to trace all sorts of phone calls to look for patterns as to what times of day calls are being made, what countries..., and from that to try and say, "We think this is an indication of terrorist activity..."
Rehm:... The first poll that came out, Mark Rotenberg, following the revelation of this information seemed to indicate that almost two thirds or more of the American public wasn't concerned about it at all. Today's issue of USA Today indicates that about half are now concerned. What do you make of that?
Rotenberg: I think it's very interesting, Diane, that in fact several polls have come out since the initial Washington Post poll suggesting that a majority of Americans opposed the program. That was in USA Today this morning. Over the weekend, CNN had done a polls and I believe there's a poll in Newsweek. There is a point at which the public starts to say, We are prepared to support the Administration in this war on terrorism, but we have to be assured that these efforts are undertaken in a legal manner. That is really the critical debate that I think Gen. Hayden is going to confront this week during his confirmation hearings... for head of the CIA. People think very highly of him and he comes in, of course, with the President's support in this role. But there are now very important questions that need to be answered since of course he was the Director of the National Security Agency during the period in time when both of these programs -- the interception of communications without a warrant took place. the building of this massive database took place. And I think one of the points that has not yet been raised in this debate, if I can go back on the legal authorities for any government actor to conduct this kind of surveillance, but there's a very interesting question: at what point in time was the NSA given the authority to conduct surveillance on American citizens? Because you know...
Rehm:... Previously that had been totally off limits?
Rotenberg:... This had been totally off limits. The NSA's role, even after 9/11, I think, was really to act in support of the other law enforcement and intelligence agencies within the US government. The FBI, for example, has broad counterintelligence authority. It can get records and turn them over to the NSA to do the kind of data mining analysis that David and Eric have described. But at some point post 9/11, the NSA was given authority to conduct surveillance within the US. And it's really extraordinary.
Rehm: David Rivkin, what about Congressional and judicial oversight here? What type is expected of the US government and what has occurred?
Rivkin: Based upon what we've read in the media, this is a classic example of the Executive exercising in wartime the discretionary power that he's given, both under the Constitution, that he's not been blocked by any statute, and a situation where judicial engagement would not be appropriate. And again, I sort of chuckle because there's a succession of warrants. Everything has to be done under warrant. I would argue that, if you look at the Constitution, the judiciary also has limited powers in Article III. The judiciary has power to deal with cases and controversies, which this is not...
Rehm: ... But there has been no war declared... I think we have to be very clear and careful...
Rivkin: ...We are in a state of war. Congress has authorized the use of force. In American history, war has been declared on only four occasions and we've had over a hundred plus times when force has been used. We're clearly in a state of war. Everybody agrees with that in Congress...
Rehm: ... Well, you may agree with it, and there may be a great many people who agree with it, but there has been no war declared...
Lichtblau: That's certainly true and that gets to the crux of the matter: what emergency powers the President can claim under Article II. Obviously the President and the Vice President have a very, very expansive reading of his ability to go beyond what the letter of the law would suggest is allowed in fighting terrorism.
Rehm: Eric, is there any situation here which might put the phone companies who have agreed to cooperate with the federal government -- is there a situation here which might put them in legal jeopardy for having agree to do this?
Eric: Oh sure. The three that are named are clearly already in some legal liability. There was a lawsuit brought even before this last USA Today story against ATT which is now pending in northern California. The Justice Department is trying to impose this rarely used statute of state secrets to quash the entire lawsuit. But after our original story and subsequent story on data mining and ATT's role in that, they were sued by shareholders saying that they had violated and compromised the privacy rights of their customers. So certainly the telephone company lawyers have to be scrambling right now to assess their own jeopardy...
Rehm: So where does this go from here? Mark Rotenberg, do you see this going through the courts, perhaps even to the Supreme Court, to decide whether the National Security Agency has this kind of authority?
Rotenberg: I think this is going to go in a couple of directions. I think the civil liability suits against the telephone companies will proceed and I think the telephone companies really are at risk there for having violated the federal privacy laws. I think as to the NSA's ability to conduct domestic surveillance, the problems will arise in judicial proceedings when the government tries to make use of the evidence that it has obtained in this manner -- which many people think is unlawful. And I think this is the corrosive impact that the program has. You see, when the government presents evidence against someone, it needs to say, We obtained this in a legal manner. Otherwise the defendant gets to say, I can't be convicted based on this! So we're going to be in a very difficult situation when the information obtained through this program is presented. And of course the hearings with General Hayden this week will give the Congress the opportunity to conduct some oversight.
Lichtblau: I think the point about the NSA's role is an important point worth stressing. Prior to 9/11, and even for several years afterwards, it was drilled into every NSA employee that the agency does not spy on Americans. The agency's mission is foreign-based, to use its sophisticated satellite network on foreigners -- foreign spies, foreign agents...
Rehm: And didn't the President himself declare as much?
Lichtblau: He certainly did. Yes. And now we've seen a really remarkable cultural shift in turning the most sophisticated spy network in the country inward, which raises a whole host of issues. We just reported over the weekend -- at the Times Scott Shane and I have a story that the Vice President had been pushing for an even broader reading the NSA's powers. The NSA's lawyers drew the line on the warrantless eavesdropping at one end being in the US and one end being outside the US. The Vice President's office and his main legal advisor, David Addington, had been pushing for an even broader reading, saying there's no reason we cannot listen without warrants to both parties in the US. That allowed the NSA to engage in purely domestic surveillance.
Rivkin: I'm puzzled. This is not surveillance at all, Diane. Remember NSA did not go out and grab this data. NSA was given, in an entirely lawful manner, business records, which then it proceeded to analyze. Let's leave aside the words "surveillance program." This effort is nothing more than NSA using its computers and its expertise to analyze a mass of data that was given to it. No individual American was spied on, number one. This program was briefed to Congress as far as intelligence oversight...
Rehm: .. and who were the individuals involved there?
Rivkin: From what we've heard, the chairman and the ranking member of the House and Senate Intelligence Committees -- and I know there's a debate about whether or not all members of those committees should have been briefed. But it was briefed to Congress. There's no statute that in any way prohibits the President from doing that. And there is absolutely no modality by which there's a judiciary has a role there [unclear]. Remember, the judiciary's role is not to be a privy council. It hasn't the right to second guess what the executive is doing. There's no way to give a warrant, even if a FISA judge wanted to, for this type of activity. Because all NSA has done is analyze data that was provided to it by the phone companies. They didn't spy on anyone!
Rotenberg: I'm surprised to hear David defend the White House briefing of Congress about this activity. Because I think virtually everyone concluded, including the members of the intelligence committees of both the House and the Senate as well as judges who are members of the FISA court that the briefings were clearly inadequate. Most of them had no idea that this was taking place and those members who were briefed actually wrote letters that they put in their office safes to record the fact that they didn't think the programs were legal. So on the Congressional side, I think there's a clear belief that there needs to be much better oversight than was previously established. Now as for David's other point -- what is the role of the judiciary -- I think that's a difficult question to answer. But I don't think the answer there is no role for the judiciary is satisfactory. Because these records clearly involve American citizens' telephone calls and dialing patterns and implicate the most fundamental privacy interests.
Rivkin: As Mark knows very well, there are classified protocols that govern the way in which the most sensitive intelligence programs are briefed to intelligence committees. They did not originate with this administration. They have been in place for decades. And a range of cases instead of briefing the full committees, you brief a ranking member, a chairman, as well as the House and Senate leadership. That's the way it's been done since the beginning of time -- since the first Congress. The Congress chose of the United States the founding chose not to exercise its oversight function as a committee as a whole. It broke itself into committee structure and had a range of people designated to receive information beyond the Congress. It's ludicrous to me that a number of members were briefed and not all of them complained. In fact the only person that I know of was Senator Byrd who somewhat belatedly complained about it. Senator Rockefeller... excuse me... [NB: Mr. Rivkin is very difficult to transcribe accurately. He often speaks very quickly, running words and sentences together.]
Rehm: Eric, do you want to comment?
Lichtblau: I think what you're seeing in this debate between David and Mark is that the legal terrain in the whole question of data mining is a very murky one. Whereas with the warrantless eavesdropping there was what everyone thought was a clear prohibition in FISA. When it comes to data mining, there are a million different opinions and whereas for the government to find out who you are calling, Diane, would generally take what's called a "trap and trace" or a "pen register warrant." But when you're talking about multiplying that by millions of calls or billions of calls, the area of data mining is much much murkier. It's unclear if a computer monitor is [?], if a computer reads the content of an email without human eyes and ears...
Rehm: ...So emails are involved here?... Lichtblau: Emails are certainly involved. The whole data mining is largely for the most part unregulated and I think it's public pressure that's driving this more than legal authorities.
Rehm: How much money is this costing the federal government?
Lichtblau: We can only guess. The entire NSA budget is classified and so it's obviously a multi-billion dollar operation. We can only guess...
Rehm: ...Here's call from Sylvi who's in the Cleveland OH area.
Sylvia: Good morning... I have a question in reference to a person by the name of Valdis Krebs who's a social network analyst. He's in the Christian Science Monitor, quoted this morning. And he's also in Newsweek. I believe with Steven Levy. He says you don't need these volumes of phone records to get effective analysis. He said the best way to get the bad guys is go from the bottom up! He's also real concerned about a lot of data. You need specific questions to find the specific patterns rather than these haystacks and haystacks full of data to try to find a tiny little needle. He thinks you'll find a pattern, no matter where you go...
Rehm: Mark Rotenberg?
Rotenberg: This is a very important point and it's been expressed by many experts in computer science. Bruce Schneier who's the author of an important book, "Beyond Fear," has said that the benefit of data mining has most likely been exaggerated, that the best technique, of course, for uncovering suspect activity is to begin with some type of suspicious predicate which is of course the way most criminal investigations unfold. We find something that gives us reason to believe that there's illegal activity, and we pursue that lead. The data mining analysis typically starts by assembling as much information as possible and trying to draw inferences from the top down. The problem there is something the mathematicians are familiar with, which is called combinatorial explosion. In other words you multiply several different possibilities and then you're generating millions upon millions of leads. Now this is a difficult question, of course, to answer. Experts have varying views. But I don't think we can presumptively presume that data mining in all cases is going to produce a lot of useful information.
Rivkin: It's ironic. I'm not a technical expert in data mining. But I would say as a lawyer, go in court and the people who oppose -- and let's be frank, Mark and other critics oppose this as intrusion of civil liberties -- are also the very same people who indicate that this particular option has no policy relevance. If I were the jury, I would wonder to what their view as to the extent of the legality and sort of political propriety colors their views as to the utility. Let me just say one thing: we have to do everything. We're talking about connecting the very same dots that people were very angry weren't connected prior to September 11th. With all due respect, it would be great if we had a law enforcement approach to get at these people. But we don't. There are people here who've taken advantage of the tremendous openness of American society. We literally live in state of total anonymity in this society without ever tripping anybody's suspicions. If we only relied on traditional law enforcement techniques, we wouldn't get anywhere. So the reason we need to do the data mining is because it give us, not a guarantee, but at least a shot at connecting the dots.
Lichtblau: Well, I think it's an open question whether or not these data mining tools work or not. You'll remember that there was a controversial program called "Total Information Awareness" that John Poindexter was running at the Pentagon. That was effectively shut down because of Congressional reaction. It was defunded because of concerns about both the efficiency and the civil rights aspects of creating a massive database like this. Other people point to a program called "Able Danger" that supposedly led some folks at the Pentagon to Mohammed Atta before 9/11, although there have been serious attacks on the credibility of that report. I don't think anyone really knows whether or not this stuff works at the bottom line.
Rehm: Where is this story going?
Lichtblau: I think this certainly has given new momentum to the whole question of domestic surveillance. After our story in December, there were obviously several months of heated debate with an intense White House campaign. That had died down a bit, to be honest. We had some Congressional proposals that are still pending. This has now ratcheted it back up and I think it's on the front burner again.
Rehm: ...Let's to now to Tom in Ann Arbor, MI.
Tom: Quick points to make. If we could trust our institutions with the information they get and how they handle it, people wouldn't be so darn worried about what these entities get as far as information from their personal lives. And if we going to get planetary-size piles of information, let's put some Americans to work, some people within the country sifting through it... [?]
Rehm: ... Trust in institutions. Eric?
Lichtblau: Yes. I think that's what a lot of this comes down to in terms of the criticism, is that when you're talking about an extrajudicial process with no checks outside the executive branch, there is an awful lot of trust built into that that people with their hands at the wheel are going to do the right things, they're not going to misuse this program to check on people for political reasons or personal reasons.
Rehm: Here's an email from David in Lakewood, OH. He says, "The bottom line is who owns the information. There are many, many companies which own every bit of imaginable information about each and every one of us, information on who we are, where we live, how much we make, all the way to what our favorite brand of toothpaste is, and how often we buy it. We do not own this information. The company is holding the information due. They are free to sell it or give it away at will. Until there is a law that gives information ownership to the individual -- with reasonable limits -- this kind of information sharing will continue." What do you think about that, Mark?
Rotenberg: It's a very interesting point. I think a lot of people may well agree with that. But this actually turns out to be one of those situations where there is a law that gives people at least some control over their information -- their telephone-related information held by the telephone company. In some respects, in support of this person's point, the FCC took some steps over the last few years to give telephone customers in this country even more control over their telephone numbers and they now have what's known as telephone number portability which means, for example, if you go from ATT to Qwest, which some people may be thinking of doing this week, you can take your telephone number with you. I think that reflects a determination that a person's telephone numbers are so closely tied to their identity these days, it is like an ownership.
Rehm: Here's an email from Ron, in Charlotte, NC. "Once a suspicious pattern of calls is detected and a decision made to investigate, what is the next step? Is a judicial warrant sought? Or does the administration (present and future) proceed warrantless?"
Rivkin: With the exception of a narrow case of the warrantless terrorist surveillance program, which is being extensively debated now, in a lot of instances the Administration would go get a warrant and launch an investigation. It's very important to understand, though, it's not just for that purpose. We are very interested in getting strategic warning in case of another attack. That's why I used the example of the proverbial "canary in the mine." If a pattern is sufficiently alarming, you want ot tell the first responders, you want to tell the governors, you want to tell FBI. That is a very valuable warning that we would need in that situation.
Rehm: Let's go to Livonia, NY. Good morning, Earl!
Earl: Good morning, Diane... The President has told us that we are not data mining or trolling. And that's exactly what you're talking about. That's exactly what he says you're not doing. And of course that's exactly what's going on. But I take exception -- and this is my main point -- that some of your guests come on and they're experts. They're experts: they know what the contents of these programs are and they say it and they're not challenged. As you did challenge one.
Diane: I appreciate that. Thank you!
Earl: Here's the main point. One of your guests says, This does not target individuals. This program has absolutely no utility whatsoever unless it can find individuals.
Diane: What do you think about that, David?
Rivkin: That is true. But once you precipitate a certain number of individuals out of the millions involved, then you're going to go and get a warrant, either a FISA warrant or a Title 3 warrant. That is how this system is supposed to work. One thing: the President will have to be very clear. The President said that we're not doing data mining or trolling for personal records of individual Americans. This data, as I mentioned at the very beginning, has been deprived of enough of the personal characteristics -- such at the names and...
Rehm: But here's an email from Joseph who says, "How do you discern what numbers belong to a terrorist unless you are checking names or listening in? I work in the intel business. I also worked at NSA and I know what we do and how we do it." Eric?
Lichtblau: Well, just to respond to that and to David's point a moment ago, we have no indication that they are actually getting warrants once they drill down on an individual or a group of people. I think David is assuming some things there that are still very much unanswered. Given the huge traffic patterns that you're talking about here, there's absolute no reason to think that if they identify a suspicious pattern of calls to Afghanistan, they're then running to the FISA court. I think what they are doing is clearly seeing if they can narrow the base of suspects and doing that outside the court system. If David has indications that they're using FISA's to do that, I certainly have not heard it.
Rehm: Let's go to Cape May, NJ. Hi there, Leon!
Leon: ... I have a two-part question. The first part is, how does an individual obtain the information that their records may have been taken? And the second part is, if the information that my phone calls were used, is there any legal way that I can switch my phone number or phone company without being fined -- the $400 early termination thing?
Rotenberg: On the first question, I think it's a very good point that your caller makes. There are a lot of safeguards in electronic privacy law in the US. We talked a little about judicial approval or legal basis. Another safeguard that was established was the requirement that telephone companies notify a customer whose been the subject of a lawful intercept. This will happen even when the person is identified in a criminal investigation. What has happened over time is that requirement has essentially been taken away. So, under these surveillance programs where people's information may be collected and turned over to the government, there's no longer a requirement to notify customers. I think the problem here also of Congress being kept in the dark is that there's no accountability. We don't know what information is obtained and we don't know how it's used and a person who's engaging in no illegal conduct may not be aware that their telephone records sit in a big database.
Rehm: As I understand it, late yesterday Congressman Benny Thompson, Democrat of MS, the ranking member of the Committee on Homeland Security, joined a number of others -- more than fifty of their colleagues -- to demand that the President appoint a Special Counsel to investigate reports of domestic surveillance conducted by the NSA. Where is this likely to go?
Lichtblau: Well, Congress has been fighting for months, since December, to determine how it will respond. The Administration has fought hard against an active investigation. They've been forced to accept sort of a limited oversight investigation by select members of the House and Senate Intelligence Committees. This, as we've said earlier, will obviously increase pressure for a full investigation. The Democrats will seize on this with the midterm elections coming up. And even some Republicans -- Boehner and others -- have raised concerns. So I think it's more likely than it was a few weeks ago that there may be an active investigation.
Rehm: To Paw Paw, MI. Good morning, Alexander!
Alexander: ...Two points. One: the 4th Amendment prohibits unreasonable searches and seizures. I feel this is a strong violation. Secondly: What that robot said back in the days of "Lost in Space": "Warning! Warning!" Danger! This is not good for the American people. We should be very, very, very concerned...
Rotenberg: There is an interesting 4th Amendment debate taking place right now. There was a case in the late 1970's where the Supreme Court did in fact say that you didn't have an expectation of privacy in the numbers that you dial. And the proponents of this most recent domestic surveillance program have relied on that case to say that there's really not a 4th Amendment issue here. I think there are two answers. First of all, Congress passed legislation to create privacy safeguards after that Supreme Court case, and the Administration is bound by that. And secondly, even in that case from the late 1970's, it involved an individual where there was some suspicion. I think to compare what was going on then with what the government is proposing and pursuing today, a court could very likely look at this with a very different view.
Rivkin: Very briefly. I cannot disagree more. The case -- Smith vs. Maryland, a Supreme Court case, as Mark mentioned -- clearly establishes that there is no 4th Amendment protections that are accorded to what is essentially public information. With all due respect, Congress cannot create a form of protection that did not exist. Congress can, statutorially, provide restrictions on how this information can be shared. And it has not done so.
Rehm: But if the Congress is not fully informed of the scope of what's being done here, how can the Congress be involved?
Rivkin: From a Constitutional perspective, whether or not the 4th Amendment attaches does not depend upon scope. Let's all agree on that. It's not a question of scope. The information is either private and therefore deserving of 4th Amendment protection, or it's public.
Rehm: But I thought... telephone calls were private!
Rivkin: No. No. The content of your telephone calls, Diane, is private.
Rehm: But how can anybody convince me that you're only looking at telephone numbers?
Rivkin: I would say, and this is a very interesting point about how do we know.... I'd like to use the term "bureaucratic checks and balances." The New York Times itself, and it has been quite critical of the Administration, describes in yesterday's front page story the "vigorous internal debate involving NSA lawyers, Justice Department lawyers, and White House lawyers," and I can tell you from my own experience in both the Reagan and Bush administrations, you have people of good faith in the executive branch who are not just dying to go and violate individual privacy -- administrations of both parties. But will honestly try to balance collective safety, which is not government safety but the safety of all of us individuals. People who are fighting about it very strongly... [?] And the final thing I would say, Look, things leak. Things leak over time. I find it enormously significant that not once in this particular war we've had any evidence that this information is being used for political purposes. This is not the Nixon era. This is not the Johnson era. There are no plumbers, there is....
Rehm: How do we know that?
Rivkin: Because you have people who are frankly leaking to the New York Times and other media and are very critical of the Administration. Do you think that those leakers, if there's any evidence of that kind of impropriety, would not have leaked that years ago?
Lichtblau: It is true that so far there have not been any clear cases of abuse under either the eavesdropping program. Rehm: How do we know?
Rivkin: You really think that people wouldn't have leaked...
Lichtblau: I was going to say, it comes back to not knowing what we don't know. I mean the fact is that there has not been a full Congressional investigation with subpoena power and access to the records. So I qualify that by saying so far there's not been anything documented.
Rotenberg: Well, that statement is not true either. My organization, EPIC, pursued FOIA litigation to determine whether Patriot Act authorities were being properly used. And we did this when the Patriot Act was being considered for reauthorization earlier this year. We started to get back documents from an entity called the "Intelligence Oversight Board" which was reporting on a number of infractions by the intelligence community of legal rights of American citizens. These issues are not being pursued by the Congress, but to say that there's not a problem is simply to ignore the growing record.
Rehm: Here's an email from Harriet in New Haven, CT, who says, "In only one or two reports on the phone records, I've heard that the records were 'bought.' Is that true? Have we paid for our own eavesdropping?"
Rotenberg: That's an interesting issue which we've also pursued over the last several months. It turns out that there are companies that are on the internet selling these telephone toll records. The monthly cellphone statements, for example, that you get were available for a period of time for sale on the internet. Even the telephone companies objected to this. Congress was working to pass legislation which we supported and then it turned out that the intelligence community was buying the records and they didn't want the restrictions. So we run the risk also that our personal phone calls can be obtained on the open market.
Rehm: Here's a caller in Margate, FL. Good morning, Reuben.
Reuben: Good morning, Diane... My concern is that I hear on the radio and I'm hearing also in the news reports this lack of understanding of the data mining and how it's used. As an expert in the field, a practitioner/expert, I can tell you that data mining is usually used in combination with all kinds of information. So that phone number that is the key to this --- the phone number, the call, the called number, the calling number are only part of the information that the government would use. The other part of the information you can purchase on the open market combine it with that information to get a full view of whatever it is they're looking at."
Lichtblau: Certainly it is true that data mining encompasses a whole vast array of information, some of it publicly available, some through intelligence sources and, for instance, the Total Information Awareness program that we talked about earliier. It was a database that went far beyond just phone calls. It involved credit card records, travel patterns, etc. etc., to try and develop in theory the profile of a would-be terrorist.
Rehm: Very briefly, how serious do you think this issue is? Are the American people going to simply agree with President Bush that in fact this is a necessary means of holding down terrorist activity?
Rotenberg: I don't think the American people do agree with the President on this issue. I think they believe there is a way to protect the country by legal means and I think at this point the President might actually consider withdrawing the nomination of Mr. Hayden.