Cliff May

Are you outraged? You’re supposed to be. According to Peter Eliasberg, a lawyer for the American Civil Liberties Union (ACLU), in the immediate aftermath of the 9/11/01 attacks, “everybody in the country” may have had their phone calls “combed through” for terrorist connections and, if that happened, he told the Washington Post, “lots of people will be outraged.”

Would you be among them? Or would you, like me, be relieved to know that on at least this occasion, the government did its job?

During the 1990s, thousands of terrorists were trained in Afghanistan, Lebanon, Iraq, Iran and elsewhere. The government did next to nothing about that. Terrorists groups and the regimes backing them were seldom infiltrated. Neither terrorists nor their masters were effectively monitored. Despite the first bombing of the World Trade Center in 1993, and a string of subsequent attacks on other American targets in the years that followed, our intelligence agencies knew little -- and did less -- about al-Qaeda and other militant Islamist groups intent on mass-murdering Americans.

But after 9/11/01, one of the steps our intelligence officials took was to go to the big telecommunications firms and ask for help. Another attack could be coming – maybe more after that. The officials wanted access to data that might contain clues – dots they might be able to connect. The idea was not to have a federal agent listening in on your calls to Uncle Moe in Toledo. The idea was to gather huge quantities of information, “meta-data,” and mine it – seeking out patterns that might indicate terrorist connections or activities.

The methodology is sophisticated and top-secret. But here’s a simple example: If your Uncle Moe in Toledo were receiving regular calls from Tehran and then phoning Hamburg afterwards -- maybe someone in intelligence would want to find out more about the individuals calling and being called, and maybe that would lead to some actual eavesdropping and/or investigating.

An important point: The Supreme Court has held for decades that telephone record information—as opposed to the content of phone calls— triggers no Fourth Amendment privacy interest. You have no expectation of privacy in the numbers you dial because you expect the phone company to keep records of those numbers. What if you wanted to challenge a phone bill? You’d be pretty peeved if the phone company did not have records of the calls you made, when you made them and how long you stayed on the line.


Cliff May

Clifford D. May is the President of the Foundation for the Defense of Democracies.