Why Libertarians Have Better Things to Worry About Than the NSA

David Simon:

Simon is no stranger to the subject of surveillance. And he believes that many of the people angered by this week’s reports simply don’t understand the matter. More specifically, he gets the impression that “the entire news media—as well as the agitators and self-righteous bloviators on both sides of the aisle” do “not understand even the rudiments of electronic intercepts and the manner in which law enforcement actually uses such intercepts.” (Even more specifically, he thinks the New York Times editorial board “displayed an astonishing ignorance of the realities of modern electronic surveillance in its quick, shallow wade into this non-controversy.”) And he has explained why he gets that impression in a 2,500-word post on his website.

Simon likens what the NSA is doing to the wiretaps he wrote about as a Baltimore reporter (and which inspired major storylines on The Wire). In those cases, city detectives tapped public payphones which were used by many, many people, all of whom had an expectation of privacy. The detectives then monitored all the calls being made on the phones. A judge allowed them to do this, Simon says, because they weren’t listening to the calls. It is only when they want to listen to such calls, Simon argues, that the law “requires a full-blooded argument of probable cause.” (In a news conference today, Obama emphasized that “nobody is listening to your telephone calls.”)

“The only thing new” in this week’s reports about the NSA, according to Simon, at least “from a legal standpoint, is the scale on which the FBI and NSA are apparently attempting to cull anti-terrorism leads from that data. But the legal and moral principles? Same old stuff.”

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He acknowledges that there “are reasons to object to governmental overreach in the name of law enforcement and anti-terrorism,” but he thinks we should “be more incensed at the notion of an American executive branch firing missiles at U.S. citizens and killing them without the benefit of even an in absentia legal proceeding” than by what the NSA is doing with these surveillance programs.

If we learn of “FISA-court approved intercepts of innocent Americans that occurred because weak probable cause was acceptable,” then, he says, we should get upset. But we shouldn’t, in his opinion, be bothered—or surprised—by this data collection. “Frankly,” he says, “I’m a bit amazed that the NSA and FBI have their shit together enough to be consistently doing what they should be doing with the vast big-data stream of electronic communication.”