Because it dominated the news all weekend, many Americans are aware of the USA Today story May
11 revealing that the National Security Agency has established a data base containing the
records of telephone calls made by tens of millions of Americans.
Not so many Americans are aware that USA Today's "scoop" is recycled news. The New York Times
ran a story on the NSA database last December. It was treated then with the ho hum response it
so richly deserves.
What is being collected are records of who called whom, and how long the calls lasted, what the
detectives on TV shows such as "Law & Order" call "luds" (local usage details).
Detectives don't need a warrant to obtain your luds from the phone company, because the luds
disclose nothing about what was discussed in your telephone conversations. The luds are
business records which belong to the telephone company and not to you, and you have no
expectation of privacy with regard them.
The law on this is well settled. In its 1978 decision in Smith v. Maryland, the Supreme Court
said: "This Court consistently has held that a person has no legitimate expectation of privacy
in information he voluntarily turns over to third parties...When (a caller) used his phone,
(he) voluntarily conveyed numerical information to the telephone company and "exposed" that
information to its equipment in the ordinary course of business. In so doing, the (caller)
assumed the risk that the company would reveal to police the numbers dialed."
Detectives examine luds to determine if there are connections between a suspect and a crime
victim, or between one suspect and another. If the luds reveal such a pattern, they can be
used as part of the basis for obtaining a search warrant.
With its supercomputers and specially designed programs, NSA "mines" the data base of telephone
records for indications of terrorist activity. For instance, if you've been making or
receiving a lot of calls to or from Pakistan or Saudi Arabia, that traffic probably will be
flagged -- especially if you've been making or receiving those calls within a few days of a
terrorist incident. But if you've only been calling your Aunt Ethel in Portland, the data
mining program will pass you by.
The data mining program should not be confused with another NSA program, in which the spy
agency listens in on telephone conversations between al Qaida suspects abroad and people in the
United States, though the one could lead to the other. If traffic analysis indicates you've
been getting phone calls from al Qaida suspects abroad, it's a good bet the NSA will be
listening in the next time you get a call from a suspect number overseas.
So the NSA data mining program is not a big deal, and the story is not new. So why is the
media making such a brouhaha about it, and why now?
Cynics note the leak occurred on the eve of Senate hearings on the nomination of Gen. Michael
Hayden -- who as head of the NSA established the data mining program -- to be director of the
CIA. Could the leaker and the journalists going bananas over the recycled revelation be trying
to sidetrack his nomination?
Whatever the reason, the contrast between the ink and air time given the NSA telephone number
database rehash and the inattention given a startling al Qaida document captured in Iraq could
not be greater.
U.S. commandos captured in April a situation report from an al Qaida commander in Baghdad to
his superiors. It was translated and posted on CENTCOM's Web site May 3.
The document is blunt and pessimistic. Al Qaida's numbers in the vicinity of Baghdad are
small. They lack military skill. Their discipline is poor, and they're running out of
ammunition, the unknown author says. The Iraqi government is growing in strength, and much of
the Sunni population is turning against al Qaida.
"The Americans and the Government were able to absorb our painful blows, sustain them,
compensate their losses with new replacements, and follow strategic plans which allowed them in
the past few years to take control of Baghdad," the al Qaida commander wrote. "That is why
every year is worse than the previous year as far as the Mujahidin's control and influence over
I did Nexis and Google searches. They indicated no U.S. newspaper ran a separate story about
the memo, or an Iraqi roundup story highlighting the memo. I doubt this would have been the
case had the memo writer said al Qaida was winning.