The way to protect American's privacy rights, Obama administration officials are now arguing, is through the bulk collection of their phone data into a massive database. Therefore, they argue, Congress must reject bipartisan efforts in new legislation to end the mass collection and storage of data and support Sen. Dianne Feinstein's bulk collection protection bill. Because it's for our own good and for our privacy protection. Yep, they actually argue that.
The NSA has previously argued that it was allowed by section 215 of the Patriot Act to store millions of phone records of Americans in order to find potential terrorists and their connections inside the United States. A court found that NSA could hold onto the data on the grounds that it was relevant to terrorism inquiries. In theory, storing the data with the companies, instead of at the NSA, would allow the telcos to serve as a kind of privacy watchdog. They'd be in a position to examine the government's requests for information about their customers and possibly to object to them in court.Yes, people, the only way to make sure that your metadata doesn't make it into your divorce proceedings is to let the NSA squirrel it away. But there's just a few problems with that argument. For example, other levels of law enforcement are required to get a warrant in order to obtain and use that data. It's only the NSA that gets to troll around in the information about spouses or significant others to find out who they're talking to without a warrant, without getting permission from any legal authority to do it. Of course, Congress could also write into the legislation protections for the data, restricting access to it to national security. So, in a word, bullshit.
But the intelligence lawyers warned that Americans' would be subject to even greater privacy incursions if their personal information were stripped from NSA's control.
Patrick Kelley, the acting general counsel of the FBI, said the phone company data could be made available to "other levels of law enforcement enforcement from local, state and federal who want it for whatever law enforcement purposes they're authorized to obtain it." He also raised a frightening prospect: "Civil litigation could also seek to obtain it for such things as relatively mundane as divorce actions," he said. "Who's calling who with your spouse ... So if the data is kept only by the companies than I think the privacy considerations certainly warrants scrutiny."
There's also this, a point made by Marcy Wheeler in a fantastic profile of her work in Newsweek: "The next terrorist attack will come from a group that stays offline, she said, 'and we’re going to be hit bad by it because we have this hubris about the degree to which all people live online.'" While the NSA is collecting masses of information on all of us just because it can, the real terrorists are organizing off-line, off the phone, beyond the reach of the NSA's collection ability.
It's not just bulk data collection and retention the administration is trying to preserve, they're even fighting the idea of having a public advocate in the FISA Court to argue occasionally against the government's surveillance requests. That's part of the much more stringent reform legislation Sen. Patrick Leahy (D-VT) and Rep. James Sensenbrenner (R-WI) have written, legislation the NSA wants to defeat. They want to keep vacuuming up and storing everything they can, and they want to keep the rubber stamp that keeps allowing them to do it.