I will not attempt to figure out what is going on with the NSA, and what they are or are not spying on. What is known so far is that they are collecting all metadata on all phone calls in the US (and presumably the world). They have a warrant to do so, so the collection does not technically break the law, although it stretches it well past its reasonable elasticity. What is not known is how extensive use the NSA makes of the metadata it has collected. A warrant is required to listen in on domestic calls. It is not clear, however, whether that means an individual warrant, or a "basket warrant" of a broader group, allowing the NSA discretion to decide which individual numbers fit within the "basket." If the NSA inadvertently listens in on a domestic phone call, it must destroy the information, unless it reveals either a "threat of harm" or "criminal activity," which can be kept and passed on to the FBI. Not known is whether the NSA is using this loophole to circumvent the usual warrant requirement by "accidentally" listening in on as many domestic phone calls as possible. And the latest report is that the NSA is not just tracking all telephone meta-date, but even recording (though not listening to) all telephone calls. We don't know whether the NSA is collecting metadata on domestic e-mails. We believe it is not tapping in on everything that goes through the internet, but has developed a system that makes it easier to turn over information when required by court order. And not it appears that the Postal Service is keeping meta-data on all mail being sent, ready to be turned over to law enforcement.
Our information is too sketchy to do more than speculate about what is going on. I do not know enough about electronic surveillance to speculate intelligently. I will therefore consider what would be acceptable surveillance and what would not. A good place to start, and move onward by analogy, is the recent revelation that the Postal Service is keeping cover information on all mail sent in the US.
In some ways, the Postal Service story is less alarming than the rest. In that case, the Postal Service collected the meta-data on all letters, but only turns them over to law enforcement upon request. In other words, the agency collecting meta-data on letters is not the same as the one using it. Neither the NSA or any other law enforcement agency is given all the information to play with;* to obtain information law enforcement must have some sort of particularized suspicion. The Times story distinguishes between two uses of mail tracking by law enforcement. In the older version, dating back for a hundred years, law enforcement can ask the postal service to record the covers of all mail sent or received by a particular target. The newer program, adopted with the anthrax letters following 9-11, the Postal Service has routinely kept meta-data on all mail sent, and can provide meta-data on past letters sent upon request of law enforcement. One form of surveillance is prospective; the other retrospective. One could be used to follow and break up a plot as it progresses; the other is for solving crimes already committed.
But in another way, the Postal Service story is alarming. The threshold for turning over information is not high. No court order is required; law enforcement need only submit an application, which is almost never refused. (Opening mail requires a warrant, of course). And, unlike the NSA program which remains shadowy, the Postal Service program has had definite cases of abuse, and disturbing episodes. Sheriff Joe Arpaio (who else?) has been accused of using the program to trace mail on a political opponent. And the Times story begins with the account of Leslie James Pickering, a former spokesman for the Earth Liberation Front (ELF). ELF, it should be noted, is an eco-terrorist organization that engages in acts of sabotage, although it has not killed anyone so far, so surveillance of active members suspected of engaging in sabotage is legitimate. And although Pickering limited himself to propaganda on behalf of ELF and did not engage in actual violent acts, perhaps one could argue for surveillance on him on the grounds that he might lead law enforcement to violent members. But Pickering does not appear to have been actively involved with ELF for nearly a decade.
My ultimate conclusion is that I would be open to reforming, rather than abolishing, storage of meta-data on mail. Reform would follow three points:
First, the postal service must be limited to collecting meta-data and may not use the data itself. (So far as we know, this has been done).
Second, meta-data should be destroyed after a reasonable period of time. I do not know what a reasonable period of time is, but there must be some time after which the trail is too cold to be worth following. Data after this period of time should be destroyed.
Third and finally, a court order should be required. The act of submitting an application, even in the absence of scrutiny, is enough to limit use of mail meta-data to some sort of particularized suspicion, but the story makes clear that this is not safeguard enough, and that more is required.
Alas, I fear that evidence that the FBI may have improperly surveilled a former member of the ELF will not be enough to spur any serious reconsideration of the program. Improper surveillance of Operation Rescue, now, or the militia movement would lead to some action! Let's hope some such surveillance turns up.
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*So far as we know. It is entirely possible that the NSA is also vacuuming up the Postal Services' cover information as well.
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