Page 145 - Privacy in a Cyber Age Policy and Practice

BALANCING NATIONAL SECURITY AND INDIVIDUAL RIGHTS 133

millions. According to one source, “It would take 400 million people to listen
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and read” through all global communications traffic. As NSA Director
Keith Alexander put it, “If you think that we would listen to everybody’s
telephone calls and read everybody’s emails to connect the dots, how do
you do that? And the answer is, that’s not logical.” 85
Actually, the program collects phone records that show who called what
other numbers, the times the calls were placed, and their duration—but
no more. (Note that even the various leakers did not claim that the con-
tent of phone calls was collected.) This is akin to collecting the envelope
as opposed reading the actual correspondence enclosed—a practice that
is, in fact, regularly carried out in bulk by the U.S. Postal Service (USPS).
Indeed, the USPS “photographs the exterior of every piece of paper mail
that is processed in the United States” and saves the recorded data for an
unknown amount of time. 86
The government reports that it collects and stores these records in order
to have rapid access when it is needed and to stitch together various data;
for some reason it neglects to mention that the phone companies keep
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the records only for only short periods of time while security concerns
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require longer storage, which necessitates the program.
In short, given the security that comes with the gains engendered by
ready access to this information and the fact that the intrusiveness of storing
this information is low, phone surveillance, like mail surveillance, passes
this part of the liberal communitarian test. It is justified on prudential,
pragmatic, and technical grounds, as well as legal ones.

3. General Search and Individualized Suspicion

Privacy advocates often argue that before the government searches anyone it
should be required—indeed it is required, according to the Constitution—
to present to a court of law evidence demonstrating that there exists strong
reason (enough to convince a judge) to believe that the particular person
is likely to be a criminal or a terrorist. Only then, according to these
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advocates, should said person be subjected to surveillance. The phone
surveillance program violates this rule on the face of it because it collects
the records of millions of people for whom no particularized suspicion has
been articulated. Thus, the ACLU filed a lawsuit seeking to halt the pro-
gram on the grounds that the surveillance carried out was “warrantless and
unreasonable.” 90
However, the courts have long established (employing, in effect, a rather
similar line of analysis to the liberal communitarian one outlined earlier)
that when there is both a clear public interest and the privacy intrusion