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NSA Surveillance

MSNBC journalist Bob Sullivan, in his blog Red Tape Chronicles, writes:

Ask Americans something like, “Should the government be allowed to read e-mails and listen to phone calls to fight terrorism?” and you’ll get a much different result than if you ask, “Should the government be allowed to read your e-mails and listen to your phone calls to fight terrorism.” . . . .

In 2002, The Pew Research Center for People and The Press asked just those questions — and by simply dropping the word “your,” the number of people willing to support such government snooping jumped by 50 percent. Only 22 percent were willing to let the government peek when it was personal, but 33 percent were willing when it sounded like only someone’s else privacy was at risk, said Scott Keeter, director of survey research for Pew.


Another issue, when it comes to framing questions in polls, is whether warrants are mentioned. Consider the question above: “Should the government be allowed to read e-mails and listen to phone calls to fight terrorism?” I’d even answer yes. The government should be allowed to conduct a wide range of searches . . . . with a search warrant, however. Indeed, under the Fourth Amendment, the government can read email and listen to phone calls with a search warrant. [The Electronic Communications Privacy Act requires a slightly more protective order than a warrant to engage in domestic wiretapping.]

So the question should be posed as: “Should the government be allowed to read e-mails and listen to phone calls without a search warrant or the appropriate court order required by law to fight terrorism?”

Consider this poll data from Rasmussen Reports [link no longer available]. The question asked was: “Should the National Security Agency be allowed to intercept telephone conversations between terrorism suspects in other countries and people living in the United States?” The answer — 64% said yes and just 23% said no.

Sounds like support for the NSA surveillance? But it’s not clear what this means. Many might be believe that the NSA should be allowed to intercept telephone conversations pursuant to a court order under the Foreign Intelligence Surveillance Act or pursuant to a warrant.

A Gallup poll asks a more well-worded question:

As you may know, the Bush administration has been wiretapping telephone conversations between U.S. citizens living in the United States and suspected terrorists living in other countries without getting a court order allowing it to do so. Do you think the Bush administration was right or wrong in wiretapping these conversations without obtaining a court order?

Right — 50%

Wrong — 46%

No opinion — 4%

The 50% figure is much different from the Rasmussen number, but it is still alarmingly high.

However, I’ve always been somewhat skeptical of polls because I think they are skewed by the type of people who bother to cooperate. Is it a really good demographic sampling of the population based on education and profession? I wonder, for example, how many lawyers (who are probably most familiar with what a court order is and why it is valuable) participate. All lawyers I’ve spoken to about polls have said they don’t bother wasting their time with them. I never participate in polls. Perhaps other people have different attitudes, but I wonder whether there’s a correlation between one’s view about participating in polls and one’s profession or one’s level of knowledge about particular legal and political issues. Ironically, we’d need some poll data on this question.

Originally Posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

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