May 15, 2006

Why is the NSA Data Mining Operation Bad?

In the comments to my first post on NSA domestic spying, Jeremy said,

This is exactly why I think libertarianism is completely nuts. If it's going to place some absurd sense of an absolute right to privacy so much higher than the extremely important obligation of the government to protect its people, then I want nothing to do with it ... It just seems silly to me to complain that my rights are being violated simply because information the government can already get if there's reason to suspect me of any criminal activity is more readily available in the event that such criminal activity is terrorism-related.

Of course, libertarians don't necessarily believe in an absolute right to privacy, but the objection raised here is, on the whole, a good one. The reason it's a good objection is that it takes libertarianism on its own terms: libertarians claim that the purpose of government is to protect citizens from (non-defensive) force or fraud. But, the objection goes, libertarians' insistence on certain types of extreme procedural rights (I have no doubt whatsoever that Jeremy supports SOME procedural rights restricting the government) prevents the government from accomplishing this purpose. The response a libertarian must make is that if the government's purpose is to protect its citizens from force or fraud, then the worst thing the government can possibly do is to become a perpetrator of force or fraud itself. What the libertarian must do, then, is establish that this is a case of force or fraud perpetrated by the government. Why would this be the case?

There are a number of circumstances we must consider: the most important question is whether the phone companies gave the information voluntarily or under threat of coercive force. In fact they must have given it voluntarily, since nothing happened to Qwest when they refused, but since Jeremy seems to me to think that the government should have been able to legally force them, we must consider both. The case where the government forces them is the easy case, so let's consider that first.

When the government undertakes a criminal investigation, it certainly violates no one's writes by going around asking questions. However, when someone doesn't voluntarily respond, warrants, subpoenas, etc., are issued. This is an application of coercive force. What justifies it? In US law, the justification is the concept of 'probable cause.' I don't understand law well enough to know exactly what this means, nor am I prepared to give a comprehensive philosophical account of the correctness or incorrectness of the law, but the basic idea seems to me to be clearly correct and in keeping with libertarian principles. The government can take your documents or time or whatever from you if and only if it can show that there is good reason to suppose said documents are relevant to its criminal investigation, and, if you turn out to be innocent (or were never suspected of wrong-doing in the first place) the government (or, better, the actual perpetrator) must compensate you for your loss of utility. There are a number of ways in which the government's spying on phone records involve loss of utility:

  1. It costs the phone company money

  2. The customers, many of whom value their privacy, lose it

  3. Customers who particularly value their privacy may stop purchasing the phone company's services and try a different mode of communication, like Skype (I can't find anything on their web-site about whether they keep the kind of records which the government is getting from the phone companies, but the content of communications is end-to-end PGP encrypted, so the Skype people wouldn't be able to get at it even if they wanted to).

Now, perhaps all of these are compensated simply by the utility gain of increased safety, so that there are no purely utilitarian concerns against the program (barring, of course, alarmists who are more afraid of the government than of terrorists - governments can be nasty things; I can't say I agree with these people, but I'm nto toally convinced that they're nutty). So perhaps that's not an issue, but there is still this 'probable cause' requirement. If the government walks around taking just any information they feel like today, this amounts to a capricious and unjustified application of force. At some point, we cease to believe it's really about a criminal investigation (for instance, if they planted video cameras on every street corner, or perhaps in your bedroom, or insisted on looking through your desk once a week, there might be some possibility that this would help catch criminals, but that doesn't mean you'd submit to it). So there has to be some kind of limit. Furthermore, that limit has to be enforceable, and that means some kind of judicial or congressional oversight which, in this case, doesn't seem to be happening.

Now, back to the real world: the government did NOT apply force in seizing these records; doesn't that mean that it's just like asking questions in an investigation and having them answered? After all, the records do belong to the phone companies, don't they?

It is true that the phone companies could voluntarily release this information, and no one's rights would be violated, in some hypothetical world. Of course, when the customers found out they might, again, go to a different company. However, in the actual world, the phone companies are (probably, see below) under contractual obligation not to release the data to law enforcement except under threat of force (i.e. "as required by law"). I wasn't able to locate online the telephone privacy policies or BellSouth, only the online privacy policy, so it is possible that they are not in fact breaching contract, but here are some excerpts from Verizon's "Telephone Company Customer Privacy Policy:

As a rule, Verizon will notify you and give you the opportunity to "opt out" when we disclose telephone customer information outside of Verizon. In fact, we generally keep our records of the services you buy and the calls you make private, and will not ordinarily disclose this information to outside parties without your permission. However, we do release customer information without involving you if disclosure is required by law or to protect the safety of customers, employees or property. This is further explained below ...
Examples where disclosure is required by law or to protect the safety of customers, employees or property:
  • When you dial 911...

  • Verizon must disclose information, as necessary, to comply with court orders or subpoenas. Verizon also will share information to protect its rights or property and to protect users of its services and other carriers from fraudulent, abusive or unlawful use of services.

  • We may, where permitted by law, provide information to credit bureaus ...

  • Verizon also occasionally uses contractors to do work for the company. These contractors have the same obligations as our regular employees concerning customer information.

Those are all the cases given. Now, there are a couple of loopholes here: (1) Verizon might argue that the clause "or to protect the safety of..." includes terrorism investigations, and that the list of cases given are merely "examples" and not an exhaustive list, (2) Verizon might argue that the information was released "to protect users of its services and other carriers from fraudulent, abusive or unlawful use of services." As to case (1), the terms of the contract seem to be vague enough that they might possibly get Verizon off the hook like this, but it is through sheer vagueness, and not an actual agreement from the user. As to (2), it apppears that this only implies actually breaking the law in the manner in which you use the services, for instance, phreaking and the like. So, I would conclude that, while there is some ambiguity, there is enough here that we can assert (barely) that Verizon represent to its customers that their records will be kept private whenever possible. If this is indeed the case, and these are the circumstances under which users purchase Verizon's product, and the government then convinces Verizon to cooperate in this data mining operation, we can assert that the government and Verizon conspire to perpetrate and act of fraud against Verizon's customers. If, on the other hand, Verizon didn't represent this to their customers, then nothing is wrong here, from a libertarian perspective, as long as the government doesn't apply force in order to maintain a monopoly among phone companies who release data to the government.

This brings up another issue: surprisingly enough, from a libertarian perspective, I believe one must assert that any laws which prohibit the phone companies from doing this (see the list of lawsuits against Verizon at Homeland Stupidity - all the lawsuits seem to allege violations of laws rather than terms of contracts) violates either (a) the phone companies' property rights over the data, or (b) the freedom of contract rights between the customer and the phone company. That is, if the government prohibits the phone company from sharing its data with the government (doesn't that sound kind of weird?), it tells the phone company what it can and can't do with its property, restricting it with regard to actions that vaiolate no one's libertarian rights (that is, if you give someone a piece of information, without entering into an agreement with that person to keep the information secret, their revelation of that information to a third party does not violate any negative right), and if the government requires that the terms of the contract between company and customer include a clause like that, then they violate the freedom of contract rights of both company (or, rather, stock-holders - corporations are legal fictions and have no libertarian rights as such).

The government could, of course, voluntarily restrict itself from asking for or otherwise acquiring this kind of information, but has no obligation to do so. If the government did place such a restriction, it could make a permissible law that no agent of the government could acquire such information and then charge the relevant people in the NSA and at the phone companies with conspiracy to break that law. Things get even more complicated from this point onward, so I'm going to leave off here, but I hope I've given some kind of coherent idea of a tenable libertarian position on why this is such a huge problem, even for those who have nothing to hide.

Posted by Kenny at May 15, 2006 6:02 PM
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Comments

Personally, I think the lawsuits will get shut down by the Ministry of Love using the state secrets privilege, neatly avoiding the issues.

Posted by: Michael Hampton at May 15, 2006 7:52 PM

At best I see an argument that Verizon's policy is too vague to get them off the hook of a charge of lying to their customers. I don't see any argument here against the government requesting this information and Verizon giving it, provided that the clear up the vague language a little bit (and I'm not even convinced that the language issue is a real problem, since it could be read as allowing what they did). You almost admit this, but then you conclude that this sort of thing creates a "huge problem" on libertarian premises. I just don't see the problem.

Posted by: Jeremy Pierce at May 15, 2006 8:58 PM

Jeremy, that's what I'm saying, basically, is that unless Verizon has a contractual obligation not to reveal it, it is technically ok. If the lawyers analyze it and say that Verizon has no such obligation, then I will, in good libertarian fashion, be calling for a boycott rather than a lawsuit. But I will still see it aas a huge problem that Verizon is handing this information over.

The really scary thing about the whole situation isn't really this, it's the fact that NOBODY - not Congress, not the FISA courts, not even the DOJ - knows what the NSA is doing. They refused to grant security clearance to the DOJ's office of professional responsibility. That makes them, essentially 'secret police', and it puts them above the law. With THAT I have a huge problem.

Posted by: Kenny at May 16, 2006 12:49 PM

Kenny, I found an article that serves as a good roundup of government telephone surveilance to date. Thought you might be interested:

http://www.csmonitor.com/2006/0516/dailyUpdate.html

Posted by: pferree at May 16, 2006 7:19 PM

Or Verizon could say that they didn't really give the goverment phone records after all. See:
http://money.cnn.com/2006/05/16/news/companies/verizon/index.htm?cnn=yes

Posted by: Lauren at May 17, 2006 4:22 AM

In fairness, I suppose I should also say that AT&T and BellSouth also have denied giving the government phone records, and their links are also on CNN's website.

Posted by: Lauren at May 17, 2006 4:26 AM

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