Jacob Sullum

When I shop at the Giant, because the bar code on my Bonus Card is no longer readable, I instead use an "alternate ID:" my phone number. When I call my cable company, the service rep can use my phone number to find my records. When I get a new credit card in the mail and call to activate it, the credit card company can tell it's me because of the phone line I'm using.

 According to defenders of the Bush administration's domestic phone call database, which includes regularly updated information about the calls made and received by some 200-million Americans, my grocery store, my cable company, and my credit card company can identify me based on my phone number, but the National Security Agency can't. At least, that's the implication when people say the database is legal because the information in it has been "anonymized" -- i.e., stripped of names and addresses.

 But as USA Today pointed out when it revealed the existence of this program, phone numbers can readily be linked to names and addresses using publicly available information. The claim that there's really nothing personal or private about the phone call records -- which tell the NSA who calls whom, when, and for how long -- is therefore a tenuous basis for defending the legality of data collection that ordinarily requires a court order or the customer's consent.

 Tenuous legal arguments are what we've come to expect from the Bush administration when it defends controversial measures aimed at fighting terrorism, including coercive interrogation techniques, improvised military tribunals and the indefinite detention of unilaterally identified "enemy combatants." The arguments are weak partly because President Bush doesn't really think he needs them. When it comes to terrorism, as Gene Healy and Timothy Lynch observe in a new Cato Institute analysis of the president's constitutional record, "the Bush administration comes perilously close" to Richard Nixon's position: "When the president does it, that means it is not illegal."

 Officials at Qwest, the one major phone company that refused to give the NSA its customers' records, were not persuaded by that argument. They knew they could face hefty penalties under at least two statutes, the Communications Act and the Electronic Communications Privacy Act, if they revealed this information without their customers' consent unless they were legally required to do so.

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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