Q&A: Why NSA Data Mining Matters

Domestic spying or national security? The debate over whether the government is poking too closely into Americans' lives was inflamed this week following reports that the National Security Agency (NSA) is creating a massive database of millions of phone records—and that three major telecom companies have cooperated in the effort. For privacy advocates like the Electronic Frontier Foundation (EFF), a San Francisco-based nonprofit, the answer is clear: the NSA is spying on Americans. And, according to EFF, it is illegal for telecom companies to supply customer calling details to the NSA unless they follow established legal procedures to obtain a warrant.

If the EFF has its way, the onus may soon be on the federal government to prove that its requests to the telecom companies were legal. In January of this year, the group filed a class-action lawsuit against AT&T for "allowing and assisting" the NSA's "illegal wiretapping and data-mining." The Department of Justice has already stepped in, indicating on April 28 that it intends to seek dismissal of the case by asserting the "military and state secrets privilege." With recent allegations in USA Today that Verizon and BellSouth also covertly provided information about domestic phone calls to the federal government, the progress of EFF's suit will be scrutinized by civil libertarians and other privacy advocates. A hearing to determine the court schedule for this case will be held May 17.

In the meantime, Kurt Opsahl, a staff lawyer with EFF, praises the one large communications company that appears to have refused the NSA's request: Qwest Communications. "We applaud Qwest for saying, 'No, come back with a warrant.' It was a brave decision," he says. NEWSWEEK's Susanna Schrobsdorff spoke with Opsahl about the AT&T suit, Qwest's stance and future legal action against the NSA's surveillance program. Excerpts:

NEWSWEEK: Several polls indicate that many people are not that concerned by the NSA's program. Should they be?

Kurt Opsahl: It's vital that the government operate within the rule of law. We have set forth laws about when this information can be provided, that this information can indeed be provided with proper legal process, and it is important that the government uphold the rule of law. We are a strong country that can be safe and secure and simultaneously operate within the rule of law.

Do you believe stopping this program would infringe on national security?

We've had no indication that this program is effective. Indeed there have been reports that it has been ineffective and that it is diverting resources to dead ends, resources that might be better used trying to catch the terrorists.

How do the latest revelations about three major telecom companies collaborating with the NSA to create a database affect your case against AT&T?

This news is confirmation of some of the aspects of our case, and if we are able to move forward with our case, we'll seek to prove what has been said in that article [about the data mining] and stop the NSA's surveillance program.

Why did you file suit against AT&T for providing phone records to the NSA?

We believe that federal law prohibits them sharing this information wholesale—providing the records of millions of ordinary Americans who are suspected of no wrongdoing. There are federal laws that deal directly with call-detail information—who you called, how long you spoke, when you talked. And that information—even if it does not delve into the content of communications—is regulated by federal law. So regardless of whether they are listening to a particular call, it is problematic to provide the call-detail records. In addition, there are other laws that prohibit listening into conversations themselves.

Was Qwest operating within its legal rights if, as has been reported, the company refused the NSA's request?

Absolutely. We applaud Qwest for saying, "No, come back with a warrant." It was a brave decision. It's a very bold thing to stand up to the government and insist on proper legal process. And, it's somewhat telling that the NSA was unwilling to provide that order. Certainly, in our view, it's not something that a court would order if it were asked. Thus it's interesting that the NSA, when asked to provide a court order, refused to do so.

What's the next step in your case against AT&T?

The next step is the hearing next Wednesday [May 17], which involves some sealed documents and whether they should be unsealed, which is our view. AT&T believes that they should be returned to them. But we would continue with our lawsuit even if these documents are sealed to the public. The other issue that will be addressed [at] Wednesday's hearing is the schedule for moving forward. The Department of Justice has filed a statement of interest indicating that they would file a motion to dismiss our case asserting the military and state-secrets privilege. That was due to be filed today.

Are you planning additional lawsuits against the other companies recently reported to be cooperating with the NSA?

When you are a small member-supported grass-roots organization, fighting one of the largest companies in the world is pretty tough as it is.