Page 149 - Privacy in a Cyber Age Policy and Practice

BALANCING NATIONAL SECURITY AND INDIVIDUAL RIGHTS 137

not currently required to keep these records, and they keep them for only
a short period of time. 116 That is, if the government does not store these
records, the records very often will not be available. This alone justifies the
collection program.
One may argue that we could have our privacy cake and gain all the
security we need if, instead of collecting the records, the phone companies
could be required to keep them, for, say, seven years. But this idea raises
three problems. First, terrorists and, more generally, criminals use a large
variety of phones, including landlines and cell phones, that are managed by
different phone companies. (Indeed, some carry multiple cell phones and
switch phones as needed to avoid identification.) If the government needs
to rapidly trace the calls of a terrorist who has been apprehended it would
have to approach different companies, put together different databases, and
input the information into its computers, all in short order. Anyone who has
combined large databases from several different sources can attest to the
fact that such combinations are time-consuming and challenging. There
are strong reasons to have these combinations take place before searches
actually need to be carried out. (In addition, these large databases are necessary
to find patterns.)
Second, if phone companies were to keep the records for as long as the
government might need them and were to make them available whenever
the government requests them, the difference between such an arrange-
ment and the status quo would be largely cosmetic. Indeed, I have shown
elsewhere that, while privacy advocates strongly oppose the possibility of
the government maintaining dossiers with detailed and private informa-
tion about most Americans—including those who have not been charged
with any crime—these advocates seem much less agitated when such data-
bases are kept by private companies. Too often these advocates ignore that
these private databases are merely a click (and a check) away from gov-
ernment agencies (including the Department of Justice, the IRS, and U.S.
Citizenship and Immigration Service), which have scores of contracts to
this effect. 117
This is far from a hypothetical idea. Currently, private corporations keep
very detailed dossiers on most Americans, hundreds of millions of them.
These include information on “income, net worth, real property holdings,
social security number [sic], current and previous addresses, phone num-
bers and fax numbers, names of neighbors, driver records, license plate
and VIN numbers, bankruptcy and debtor filings, employment, business and
criminal records, bank account balances and activity, stock purchases, and
credit card activity.” 118 And they make them available to the government
119
for a fee, without any court order or review. We are conditioned to hold
that private sector and privacy go hand in hand, while the public sphere is