A week after President Obama tried to calm the controversy over the NSA’s electronic surveillance by promising more transparency, the Washington Post has revealed that the agency has “broken privacy rules or overstepped its legal authority thousands of times.”
The report was based on an internal audit supplied by Edward Snowden that showed that, from April 2011 to May 2012, there were 2,776 incidents, apparently ranging from the illegal “querying” of stored telephone metadata (numbers dialed and the duration of calls) to the unauthorized collection of information about Americans to warrantless surveillance of the communications of foreign intelligence targets who entered the United States.
Andrea Peterson, a technology columnist for the Post, suggested that its scoop contradicted Obama’s assurances that “what you’re not reading about is the government actually abusing these programs.”
But what is abuse? In the remarks Peterson quoted, Obama equated “abuse” with “listening in on people’s phone calls or inappropriately reading people’s emails.” Some of that may have occurred, but the most electrifying detail in the Post story -- that a “large number” of phone calls had been wrongly intercepted when a programming error confused the area code for Washington with the country code for Egypt -- involved not the contents of calls but metadata.
Another question is whether some “abuse” -- in the sense of inadvertent violations of legal protocols -- is inevitable in a program this vast and complex. When the Post story broke Thursday night, my Twitter feed (which disproportionately comes from journalists and activists) featured a running debate over how big a deal the story really was. If intelligence agencies are capturing billions of communications, how significant are 2,776 violations, some of which were computer errors?
Finally, when the NSA’s defenders insist that there has not been abuse, they have in mind not inadvertent violations of privacy but the misuse of personal information to settle some political or personal score. So far, at least, neither Snowden nor his journalistic interlocutors have provided proof that information acquired by the NSA has been used to punish people on an Obama “enemies list” (or anyone else’s).
Of course, one can argue that, given the sprawling nature of the program and the size of its workforce, misuse of information is inevitable. Alternatively, it’s possible to oppose the NSA programs on the grounds that collection of data about Americans is repugnant (and unconstitutional) even if the information is never acted on. But if “abuse” is the issue, it needs to be defined and quantified. The Post story is just the beginning of that discussion.