Who, when and where of e-mail and phone calls reveal too much.
By Jonathan Turley
Over the course of five years, President Obama has demanded much from him supporters from promising not to prosecute officials for torture to ordering warrantless surveillance to the quashing of dozens of public interestlawsuits seeking judicial review of his policies to the recent attack on the free press. He even claimed, under his "Kill List" policy, the right to kill any U.S. citizen that he believes to be a threat to the United States. Yet, most Democrats stuck with Obama. Now, however, Obama is demanding the final measure of devotion -- he is asking supporters to abandon privacy principles in a move that will fundamentally alter our society. Indeed, he and congressional allies are trying to convince Americans that they can free themselves of fear by simply redefining privacy in a new and surveillance friendly image.
At issue are massive surveillance programs through which the administration has seized data on every call made by every citizen. At the same time, data on millions of emails are being stored showing addresses, subject lines, and attachments. The effort allows citizens to be tracked in their associations and communications. In other words, total transparency of citizens in a new fishbowl society. In response to the outcry last week, Obama and others assured citizens that they have nothing to fear from the government collecting their calls and data. It was like a scene out of the movie The Matrix with politicians trying to convince people to give up their fears and learn to love living in the artificial environment created for them. Of course, as with the prior notions of the free press and the unilateral use of lethal force, people have to surrender prior notions of privacy. Obama explained these are just modest intrusions in the new concept of government-approved privacy. He insisted that so long as the government did not read your emails or listen to your calls, there is no danger to privacy. Likewise, Sen. Lindsay Graham scoffed at the notion of any concern over privacy so long as you don't call a terrorist.
It is true that the Supreme Court in 1979 ruled that there is less protection afforded to phone numbers, which can be acquired under "pen registers." Yet, even accepting that ill-conceived decision in Smith v. Maryland, the Court was addressing government seizure of numbers to individuals who become material to investigations. The government previously used "national security letters" to get such information. What the Obama administration has done is effectively issue a national security letter for every citizens in America. Recently, the Obama administration admitted to putting reporters under surveillance and seizing such information in what is viewed by many as an extreme attack on the principles of the free press. Many citizens remained quiet as the administration called reporters potential criminals for speaking with sources in the administration. Then, they learned the government was gathering the same information from them and all other citizens.
The new privacy model would protect only the content of your emails and calls -- unless the government wants to read them. Before we are lulled back to sleep by our leaders, it is worth noting what you are about to give up.
The government has been secretly collecting all of your contacts from your intimate friends to political associations to doctors to product suppliers. Thus, if you are a government employee seeking information on being a whistleblower, your effort to reach lawyers or whistleblower groups will be seized.
Consider who you have called or emailed in the last month. The government can learn a great deal about you from just the people you call and subjects of your emails. Your "metadata" can reveal peculiar tastes and associations that you may consider hidden from all but your closest friends – and now a few thousand government monitors. The government will now know not only who you are calling but how long you are speaking, how often you call people or groups, where you call from, and even attachments like photos that you send. Ironically, the actual content of your calls or emails are usually not needed to determine the reason and subject of such communications. When you call an abortion clinic repeatedly or a medical marijuana resource line, the likely purpose of the call is self-evident. For citizens with unpopular political or religious views, repeated calls or emails to certain churches or groups indicate an obvious interest. From intimate affairs to political associations, the purpose of most communications are self-evident, particularly when they are placed within a mosaic of all of your contacts and calls.
In his press conference, Obama repeated the siren call of all authoritarian figures throughout history: while these powers are great, our motives are benign. So there you have it. The government is promising to better protect you if you just surrender this last measure of privacy. Perhaps it is time. After all, it was Benjamin Franklin who warned that "those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety."
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY's board of contributors.