Some Questions About Eavesdropping


The New York Times story about the warrantless eavesdropping that's been going on for several years now prompted a couple questions. (Beyond the obvious, and strictly rhetorical, "Don't they even pretend to care about civil liberties anymore?")

First, why on earth did the Times, apparently at the Bush administration's request, sit on this story for a full year? The supposed reason for the request is that the revelation would threaten national security by tipping off terrorists. But… about what? About the fact that the government is seeking to wiretap suspected terrorist? To whom does this come as news? We all know law enforcement can get secret wiretap warrants through a FISA court; the only reason to expect terrorists to change their behavior now that they know wiretaps are happening without warrants is if we think they've somehow broached the secrecy of the FISA courts. That seems unlikely—at any rate, unlikely to have been known about and still persisted for several years. So what kind of plausible difference to our national security could it make if terror suspects who know they might be targeted for eavesdropping with a warrant learn they might be targeted without one? Whatever the issue was, what changed? What did the Times uncover in its year of further investigation that led editors to believe the time was now ripe for publication? Or to put it the other way: I understand why a paper might want to hold off on a story when the government says it worries it might be a security threat, but if, as it seems, they ultimately decided they could publish with a clear conscience, why did it take so long to make that determination? (Tangentially related: I note with some amusement Mark Levin's complaint at The Corner that he "cannot remember the last time, or first time, this newspaper reported a leak that was helpful to our war effort." That's because, as a rule, puff stories about how very swimmingly that effort is going don't need to be "leaked": As we've recently learned, the government is so happy to have them printed it'll pay for the privilege.)

A second, slightly more abstract question is what, exactly, counts as an "international" communication these days. Previously, we're told, the NSA had only spied on wholly foreign conversations. They still (say they) don't do any wholly domestic surveillance. What's new is the intereception of phone calls and e-mails where one party is based in the U.S. and the other overseas. Except… how do we know? I check the same account whether I'm sitting in D.C. or Madrid—and I can't say I'm wholly sure I know where the servers that store my e-mail are located, though I think they're all in the U.S., though I might just as easily, from D.C., read an e-mail from my nextdoor neighbor routed through an account on a server in Madrid. The growth of Internet-based telephone services like Vonage means that the same is increasingly true of voice converrsations as well. Matt Welch is in Prague right now, but if I wanted to reach him on his Vonage phone, I'd dial a number with a California area code. Presumably the converse might be true as well: I might call an international number to reach someone staying in a hotel across town. Which of these various communications would the NSA feel at liberty to listen in on?