The Datamining Scare- Another nonthreat to your civil liberties

The Wall Street Journal is pointing out what Americans already know-

The Datamining Scare- Another nonthreat to your civil liberties.

Saturday, May 13, 2006 12:01 a.m. EDT
The Bush Administration's Big Brother operation is at it again--or so media reports and Democrats this week would have us believe. We suspect, however, that this political tempest will founder on the good sense of the American people much like the earlier one did.
Last December, the New York Times reported that after 9/11 the National Security Agency began listening to overseas phone calls of suspected terrorists, including calls placed from or received inside the U.S. This was supposed be a scandal because the tapping was done without a warrant from something called the Foreign Intelligence Surveillance Court. But as the debate wore on, it became clear that the 1978 FISA statute didn't block a President's power to allow such national-security wiretaps, and that most Americans expected their government to eavesdrop on terror suspects.
Now comes a sensationalist USA Today front-pager suggesting an even larger scandal. The government is "amassing information about the calls of ordinary Americans--most of whom aren't suspected of any crime." Worse, reporter Leslie Cauley writes, while President Bush had suggested after the wiretapping story that "domestic call records" (her words) were still private, we now know that's "not the case."
Democrats are outraged, or at least they pretend to be. And major papers have joined the chorus, with the Washington Post calling the newly reported program a "massive intrusion on personal privacy." We're prepared to be outraged, too, if somebody would first bother to explain in detail what the problem is.
Let's start by debunking Ms. Cauley's piece of journalistic sleight of hand. President Bush never suggested that domestic call "records" were private. He has said actual warrantless surveillance was restricted to conversations that involved an overseas party: "The government does not listen [our emphasis] to domestic phone calls without court approval." Datamining and wiretapping are not the same thing. So much for the "Bush lied" angle to this story.
Yes, Mr. Bush could have volunteered the larger "datamining" details at the time. But no President is obliged to divulge every secret program, especially one central to war-fighting. Had Mr. Bush done so, we doubt Democrats and the press corps would have sat back and said OK, thanks, let's move on--not when they see his poll numbers and sense a chance to take back Congress this autumn.
And once it's clear that telephone records are all we're talking about here, the rest of this alleged scandal melts away. Nobody has suggested one single call has been listened to as part of the program reported this week by USA Today. Rather, the datamining appears to keep track, after the fact, of most calls placed to and from a great many phone numbers in the U.S. In other words, the scary government database contains the same information you see on your monthly phone bill--slightly less, in fact, since names aren't attached to numbers and never will be unless government computers detect activity suspicious enough to warrant some being singled out of billions of others.
And what might the government do with these records? Well, it might use them to break up a suspected terror plot--presumably after requesting a surveillance warrant for any future domestic calls it actually wants to listen to (nobody has suggested otherwise). As important, the database will enable us to respond much more effectively to the next terrorist attack. Once the ringleader or leaders are identified, this information will make it much easier to track down any remaining comrades and prevent them from committing future crimes.
In short, the database is utterly non-invasive in itself and merely provides information for law enforcement to use, with warrants whenever necessary. By using this technology to find terrorists in haystacks before they can strike, the government can afford not to resort to the much more heavy-handed inspection and inconvenience practiced by necessity in, say, Israel. Liberals who object to datamining should wait until they see the "massive intrusion on personal privacy" that Americans will demand if the U.S. homeland gets hit again.
Alas, even some Republicans are buying into the notion that datamining is cause for alarm. Senate Judiciary Chairman Arlen Specter has threatened to subpoena the major U.S. phone companies to explain why they've been cooperating with the government. California Democrat Dianne Feinstein predicts "a major constitutional confrontation" over Fourth Amendment guarantees against "unreasonable search and seizure." And Michigan's John Conyers--who would take over House Judiciary if Democrats win in November--wants a bill to ensure that phone records are collected within the confines of FISA.
But since the database doesn't involve any wiretapping, FISA doesn't apply. The FISA statute specifically says its regulations do not cover any "process used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing." As to Ms. Feinstein's invocation of the Fourth Amendment, the Supreme Court has already held (Smith v. Maryland, 1979) that the government can legally collect phone numbers since callers who expect to be billed by their phone company have no "reasonable expectation of privacy" concerning such matters.
So the law appears to be on the Bush Administration's side here. And so does public opinion. An ABC News/Washington Post poll yesterday found that 63% of those surveyed approve of the database program. That's similar to the public's reaction to the warrantless wiretapping controversy, and helps explain why the President's critics on surveillance issues rarely have the courage of their professed civil libertarian convictions.
Instead, they will quibble endlessly over procedural formalities while conceding the broad policy goals. The chutzpah prize on this score goes to Wisconsin Senator Russ Feingold, whose position on wiretapping is that we should definitely be listening to al Qaeda but that Mr. Bush has committed an impeachable offense by doing it the wrong way. Republicans would love to see a Democratic Presidential nominee take that proposition into the 2008 election.
Most Americans seem to be cooler customers, or perhaps they can sort substance from mere political opportunism. After all, even most of the Democratic critics of datamining don't say they'd stop it. They just want to see it "investigated" and supervised--by them and their fellows in Congress, so they can pound away at the President without having to take responsibility for keeping America safe.
Perhaps Americans outside Washington understand that it's probably not an accident that the homeland hasn't been attacked again since 9/11, and that maybe--just maybe--the aggressive surveillance policies of the Bush Administration are one reason.